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REESE    LIBRARY 


UNIVERSITY    OF    CALIFORNIA. 

Accessions  No.  2-/^_?  J_  _  .         Slielf  No. 

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The  Constitution  of  the  United  States. 


THREE  LECTURES 


DELIVERED    BEFORE 


THE  ONmsm'  LAW  SCHOOL 


OF   WASHINGTON,    D.  C. 


J    *-"  '-'•> 


BY 


Mr.  Associate  Justice.  Miller, 

Y^^       OV  THE 

UNIVERS 

FEBRIiARY   6,    12,    AND    19,    1880. 


WASHINGTON,   D.  C.  : 

W.  H.   &   O.  H.  MORRISON, 

Law  Boohellers  and  Publishers. 

1880. 


Entered  according  to  Act  of  Congress,  in  the  year  1880,  by 

Samuel  F.  Miller, 

In  the  Office  of  the  Librarian  of  Congress,  at  "Washington,  D.  C. 


PftEHS  or  TuoMAR  McGiix  h  Co., 
Law  Pwsterb, 

WAsmnaTOM,  D.  ( 


First  Lecture. 


]jt  gives  me  great  pleasure,  gentlemen,  to  spend 
three  evenings  of  the  little  recess,  or  holiday,  that 
our  court  takes  from  its  labors,  in  communing 
with  gentlemen  who  are  in  pursuit  of  the  law. 
As  I  had  occasion  to  say  to  the  Bar  Association 
of  the  city  of  New  York,  last  fall  was  a  year, 
when  I  delivered  the  address  before  it,  "  We  are 
all  lawyers,  and  judges  do  not  cease  to  be  hiw- 
yers  by  becoming  judges;  in  fact,  they  would  be 
very  poor  judges  if  they  were  not  lawyers." 

The  subject  with  which  I  propose  to  occupy 
your  attention  in  the  three  discourses  that  I  shall 
have  the  pleasure  of  delivering  before  you,  is 
"  The  Constitution  of  the  United  Stales"  I  have 
adopted  that  subject  not  because  there  is  anything 
in  it  new  or  fresh  to  you,  or  to  any  other  well- 
read  class  of  gentlemen,  but  because,  owing  to 
my  situation  on  the  bench  of  the  Supreme  Court 
of  the  United  States,  I  have  been  compelled  to 
give  it  very  close  attention,  and  to  look  at  it  in 
aspects  which  required  the  best  powers  that  I  had 
to  give. 


4  LECTURES    ON   THE   CONSTITUTION 

It  is  a  veiy  remarkable  instrument  in  many 
particulars.  I  think  I  may  venture  to  say  that 
no  more  important  written  instrument  exists  to- 
day in  the  history  of  the  world,  as  aifecting  the 
happiness  of  the  world,  outside  of  those  which  are 
of  a  religious  character — perhaps  I  might  say  out- 
side of  those  of  a  divine  origin.  It  is  the  subject 
of  perpetual  exegesis  by  all  the  lawyers  of  the 
country  and  by  all  the  courts  of  this  country, — 
an  immense  number  of  lawyers  and  courts  rep- 
resenting a  very  large  population  and  very  ex- 
tensive business,  all  of  which  are  more  or  less 
affected  by  this  instrument  which  we  call  the 
Constitution  of  the  United  States. 

Written  Constitutions  are  not  very  numer- 
ous. Still,  there  have  been  societies  of  men, 
and  States  and  colonies,  which  have  been  gov- 
erned, in  their  organic  policy,  by  instruments 
called  charters,  granted  by  kings,  or  monarchs, 
or  rulers — by  whatever  style  they  may  have 
been  called  —  to  their  subjects,  and  designed 
to  confer  rights  and  regulate  the  relations  of 
the  subjects  to  the  monarch.  This  instrument, 
however,  is  one  which  comes  from  a  different 
source.  It  is  one  in  which  the  people  themselves 
have  undertaken  to  frame  an  organic  law  gov- 
erning the  relations  of  the  whole  people  of  the 


OF   THE   UNITED    STATES.  5 

United  States,  to  a  very  large  extent,  to  the  Gov- 
ernment of  the  United  States,  and  the  relations 
of  the  States  to  that  government,  and  to  pre- 
scribe, in  very  many  cases,  the  limits  and  rules 
of  private  and  individual  rights.  Such  an  in- 
strument, framed  and  put  into  language',  judi- 
ciously operative  upon  the  affairs  which  it  is 
intended  to  govern,  is  a  rare  thing  in  the  history 
of  the  world ;  and  I  think  I  may,  with  safety,  say 
that  no  instrument  of  such  a  character,  so  well 
adapted  to  the  purposes  which  it  is  intended  to 
subserve,  and  so  successful  for  those  purposes, 
has  ever  been  framed  by  the  ingenuity  of  man. 
It  is  therefore  a  subject  unique  in  that  respect, 
to  which  I  invite  your  attention. 

This,  however,  hke  all  other  instruments,  when 
it  becomes  the  subject  of  comment  and  of  con- 
struction, must  necessarily  be  looked  at  in  the 
light  of  its  origin,  the  purposes  which  it  was  in- 
tended to  subserve,  and  the  evils  which  it  was 
intended  to  remedy. 

It  would  be  almost  enough  to  occupy  an  entire 
course  of  lectures  for  any  one  to  attempt  to  give 
you  a  history  of  the  Constitution  of  the  United 
States. 

Probal)ly  the  l)est  condensed  history  of  it  will 
be    found    in    Mr.  Justice    Story's  preliminary 


6  LECTURES    ON   THE   CONSTITUTION 

and  introductory  chapters  to  his  Commentaries 
on  the  Constitution  of  the  United  States.  I 
will,  however,  state  to  you,  in  a  very  few  words, 
that  this  Constitution  arose  out  of  the  condition 
J  in  which  the  people  of  the  United  States  found 
themselves  at  the  close  of  the  Revolutionary 
War.  Having  established  their  independence 
of  the  Government  of  Great  Britain,  and  been 
recognized  as  one  of  the  family  of  nations,  they 
soon  found  that  the  compact  under  which  they 
had  achieved  successfully  that  independence, 
namely,  the  Articles  of  Confederation,  was  ut- 
terly inefficient  and  incompetent  to  answer  the 
purpose  of  binding  them  together  and  conduct- 
ing the  new  nation  on  its  pathway  to  future 
usefulness.  Its  defects  were  obvious,  and  some 
of  them  you  have  no  doubt  heard  before.  It 
was  found  that  the  Colonies,  as  they  had  been 
previously  called,  had  never  really  been  inde- 
pendent States  or  Nations.  They  had  been  sub- 
jects of  Great  Britain,  controlled  by  charters  of 
the  King  of  England,  submitting  very  largely  to 
the  legislation  of  the  Imperial  Parliament,  until 
certain  questions  connected  with  taxation  caused 
a  resistance,  not  to  the  King,  but  to  the  laws  of 
Parliament. 

In  the  effort  at  resistance,  thev  had  united  to- 


OF   THE    UNITED    STATES.  7 

gether  in  a  body  to  make  that  resistance  suc- 
cessful ;  so  tliat  being  a  government  or  a  nation 
when  they  were  free,  each  individual  colony  had 
never  been  at  any  time  a  separate  and  inde- 
pendent State,  and  yet  neither  of  them  recog- 
nized any  supremacy  in  any  other  State;  and 
the  question  was,  what  amount  of  supremacy 
should  they  grant  or  yield  to  the  common  gov- 
ernment which  they  were  about  to  form.  It  was 
found  that  that  which  had  carried  them  throuo:h 
the  war  in  the  paroxysm  of  patriotism  necessary 
for  self-defense,  was  incapable  for  carrying  on 
a  successful  government  after  that  impulse  was 
gone. 

One  of  the  evils  which  was  most  pressing,  to  be 
remedied  by  this  new  organization  or  reorgan- 
ization of  the  government,  was  that  no  taxes 
could  be  successfully  collected  for  the  support 
of  the  general  government.  The  only  rehance 
during  the  Revolutionary  War,  and  from  1776  up 
to  1789,  when  this  government  was  organized, 
was  a  call,  or  request,  by  the  Federal  author- 
ity upon  the  States  for  their  proportion  of 
the  taxes  necessary  to  support  the  government. 
Even  during  the  pendency  of  the  war,  this  was 
responded  to  very  feebly  and  very  unequally; 
and  hence  the  war  of  the  Revolution  was  fought 


8  LECTURES    ON   THE   CONSTITUTION 

on  credit,  and  an  immense  debt  remained  to 
be  paid  at  its  close.  There  was  no  means  of 
relief  in  taxing  the  people  by  the  parent  gov- 
ernment. 

Another  evil  was,  that,  coming  to  be  recog- 
nized as  one  of  the  nations  of  the  earth,  this  so- 
called  central  or  general  government  had  no 
sufficient  pow^ers,  conceded  to  it  by  the  States, 
to  conduct  its  affairs  with  foreign  governments. 
We  had  no  capacity  to  make  treaties  except 
on  a  limited  class  of  subjects.  We  had  no 
means  to  raise  armies  and  navies,  or  of  pay- 
ing the  government  debt;  and  how  far  each 
State  could  itself  negotiate  wnth  other  nations, 
and  how  soon  we  should  be  subjected,  as  the 
Grecian  republics  were  in  the  days  of  the  Olym- 
pic councils,  to  the  influence  of  other  nations 
who  might  approach  any  one  of  the  States 
to  withdraw  it  from  the  Union,  nobody  could 
tell. 

But  perhaps  of  all  the  causes, — like  some  little 
fretful  thing  that  seems  unimportant,  but  which 
perpetually  annoys  you, — of  all  the  causes  which 
contributed  most  largely  to  the  formation  of  the 
new  Constitution,  was  the  condition  of  trade  and 
commerce  abroad,  and  trade  and  commerce  be- 
tween the  States.     The  power  of  taxing  all  the 


OF   THE    UNITED    STATES.  9 

goods  that  passed  through  each  State  and  every 
port  remained  with  the  States.  The  Httle  StatQi^ 
of  Rhode  Island  was  mistress  of  the  finest  and 
most  extensive  harbor  or  port  in  the  United 
States  at  that  time — the  harbor  of  Newport.  All 
the  goods,  nearly  that  went  to  the  large  cities 
of  New  York  and  Boston — the  foi-eign  goods 
that  suppHed  the  markets  of  New  England  and 
New  York — nearly  all  of  them — were  imported 
through  Newport;  and  that  little  State  levied 
taxes  on  their  importations  at  her  own  pleasure. 
She  was  getting  rich  at  the  expense  of  her 
neighbors  and  confederates,  in  what  was  then 
nothing  more  than  a  confederacy.  And  one 
result  and  evidence  of  that  will  be  found  in 
a  thing  which  perhaps  you  will  all  remember, 
that  the  State  of  Rhode  Island  was  the  last  State 
which  assented  to  the  Federal  Constitution,  and 
that  she  did  not  give  that  assent  until  three  years 
after  it  was  promulgated.  That  was  the  reason. 
She  was  living  on  the  commerce  of  the  whole 
country  and  enriching  her  citizens  at  the  expense 
of  those  of  the  other  States.  The  port  of  Charles- 
ton did  the  same  thing  with  reference  to  the 
southern  country — Georgia  and  North  Carolina. 
The  port  of  Norfolk  did  tlie  same  thing  with 
reference  to  Virginia  and  Maryland ;  and  I  am 


10  LECTURES    ON    THE    CONSTITUTION 

not  certain  but  our  neighboring  town  of  Alex- 
andria did  the  same  tiling  with  reference  to  some 
portion  of  Virginia  and  Maryland. 

But  that  was  not  all.  The  trade  between  the 
States  was  taxed  heavily,  and  this  was  one  of  the 
most  diffi<5ult  things  to  correct,  and  has  been  most 
persistently  pursued  up  to  the  present  hour.  Not- 
withstanding fornearly  one  hundred  years  we  have 
had,  in  the  instrument  of  which  I  am  speaking 
to  you,  the  declaration  that  Congress  shall  have 
power  to  regulate  the  commerce  with  foreign 
nations  and  among  the  several  States,  there  are 
to  this  hour,  upon  the  statute-books  of  almost 
every  State,  laws  violating  that  provision ;  and 
if  that  provision  of  the  Constitution  were  re- 
moved to-morrow,  this  Union  would  fall  to  pieces, 
simply  by  the  struggles  of  each  State  to  make  the 
property  owned  in  other  States  pay  its  expenses. 
Within  two  weeks  we  have  had  before  the  Su- 
preme Court  three  cases  in  which  that  point  has 
come  up  (and  we  will  have  several  more  of 
them).  One  of  them  was  from  Pennsylvania, 
in  which  I  had  the  honor  to  deliver  the  opinion 
of  the  court,  in  which  that  State  declared  that 
auctioneers  should  pay  a  license-tax  of  such 
a  percentage  upon  their  sales  of  all  goods  not 
produced  in  the  State  of  Pennsylvania ;  which  you 


OF   THE    UNITED    STATES.  11 

see  at  once  is  a  discrimination  and  a  tax  upon 
all  goods,  sold  at  auction,  produced  in  sister 
States.  And  it  is  not  long  since  we  had  a  case 
coming  from  the  city  of  St.  Louis,  where  an 
ordinance  of  that  city,  authorized  by  the  State  of 
Missouri,  imposed  a  tax  upon  all  peddlers  except 
those  who  sold  goods  produced  in  the  State.  And 
the  thing  is  infinite.  We  have  now  pending  be- 
fore lis,  and  undecided,  a  question  that  was  argued 
a  month  ago,  in  which  the  city  of  Baltimore, 
authorized  by  a  statute  of  the  State  of  Maryland, 
imposed  a  wharfage-duty  upon  all  produce  land- 
ing at  a  wharf  of  the  city,  other  than  the  produce 
of  the  State  of  Maryland ;  so  that  the  fish  and 
other  produce  of  Virginia,  Pennsylvania,  and 
other  States,  had  to  pay  a  tax  for  landing,  while 
the  produce  of  Maryland  had  none.  * 

It  was  this  tendency  of  each  State  to  make  a 
grabbing  business  of  supporting  its  government 
out  of  taxes  upon  the  property  of  other  States,  or 
on  the  produce  which  must  go  through  one  State 
to  another,  that  more  than  any  other  compelled 
the  formation  of  the  present  Constitution. 

Now,  the  importance  of  understanding  this  fact 
as  one  of  the  reasons  for  forming  the  Constitu- 

*The  court  has  since  decided  the  law  to  be  imconstitu- 
v^      OF  TlJE        ^r 

UNIVERSITY 


12  LECTURES    ON   THE   CONSTITUTION 

tion,  is  quite  apparent.  A  key  to  the  construc- 
tion of  a  statute  or  a  Constitution,  is  to  inquire 
what  was  the  evil  to  be  removed,  and  what  rem- 
edy did  the  Constitution  propose ;  so  that  when 
any  of  these  questions  come  up,  requiring  judi- 
cial construction  of  a  clause  of  the  Constitution, 
we  go  back  to  ascertain  the  evil  that  was  in- 
tended to  be  remedied. 

The  Articles  of  Confederation  were  a  rope  of 
sand ;  the  nation  was  only  a  nation  in  name;  and 
when  the  framers  of  the  Constitution  came  to 
their  work  with  a  full  view  of  the  importance  of 
it  and  of  the  evils  to  be  remedied,  they  declared 
that  this  instrument  which  they  framed  was  no 
longer  to  be  a  rope  of  sand,  but  that  they  were 
framing  an  instrument  and  instituting  a  govern- 
ment for  common  defense  and  general  welfare ; 
and  they  used  language  no  longer  speaking  for 
the  States  individually,  who  might  struggle  with 
each  other,  but  they  said :  "  We,  the  people  of 
the  United  States,  do  ordain  this  instrument  to 
be  our  Constitution."  It  was  then  that  a  na- 
tion was  born. 

Of  course,  when  these  delegates  all  came  to- 
gether, they  must  have  had  among  them  a  great 
deal  of  the  philosophy  of  government.  Probably 
no  nation  or  people,  as  young  as  ours  then  was. 


OF   THE   UNITED    STATES.  13 

ever  had  as  many  men  thoroughly  versed  in  that 
philosophy — as  many  men  who  had  given  vigor- 
ous attention,  educated  and  trained  attention,  to 
the  science  of  government,  as  were  to  be  found 
in  the  United  States  at  the  time  this  instrument 
was  to  be  made.  And,  fortunately,  society  was 
in  a  condition  when  personal  aspirations  and  ma- 
lign influences  were  not  brought  to  bear — proba- 
bly could  not  be  brought  to  bear,  from  the  fact 
of  the  wisest  and  best  men  being  sent  forward  to 
make  that  Constitution.  In  that  we  have  reaped 
the  benefit  of  the  good  fortune  of  our  ancestors. 
In  considering  the  forms  of  government,  we 
find  that  there  are  three  prim^iry  forms :  the  mon- 
archy, the  aristocracy,  and  the  democracy.  I  am 
not  here  to  tell  you  what  a  monarchy  is,  or  what 
either  of  these  is.  You  know  that  a  monarchy, 
pure  and  simple,  is  the  despotic  government  of 
one  man.  An  aristocracy  is  perhaps  less  des- 
potic, but  clearly  arbitrary — a  government  of  the 
leading  men  or  spirits  of  a  country,  whether  they 
be  gentlemen  or  hereditary  noblemen — not  one, 
but  many — but  still  professing  to  act  by  the 
power  of  the  people ;  a  beneficial  power  and  in- 
fluence, acquired  either  by  inheritance  or  by  con- 
quest; and  this  is  called  an  aristocracy.  A  de- 
mocracy, pure  and  simple,  is  said  to  be  a  govern- 


14  LECTURES    ON   THE   CONSTITUTION 

ment  by  all  the  people.  There  have  been  very 
few  of  these  governmental  forms,  simple  and 
pure,  in  the  history  of  the  world ;  perhaps  in  re- 
gard to  monarchy  there  have  been,  and  possibly 
always  will  be,  monarchs  who  are  absolute,  at 
least  who  are  limited  by  no  acknowledged  re- 
straint on  their  authority.  In  regard  to  aris- 
tocracies, they  have  been  but  few;  and  probably 
the  Venetian  government,  which  was  carried  on 
with  great  prosperity  for  three  or  four  hundred 
years  by  a  set  of  hereditary  nobles  and  success- 
ful merchants,  was  the  purest  example  of  aristoc- 
racy that  the  world  has  ever  seen.  England 
was,  a  century  ago,  more  of  an  aristocracy 
than  anything  else.  But  a  pure  democracy 
is  almost  unknown,  from  the  difficulty  of  hav- 
ing all  the  people  participate  in  the  functions 
of  the  government;  because  these  functions  not 
only  require  the  processes  of  government,  but 
they  include  the  process  of  making  laws  and  the 
process  of  administering  those  laws.  Such  was 
the  democracy  of  Athens,  probably  the  only 
highly-civilized  form  of  democracy  that  ever  ex- 
isted— a  government  in  wdiich  the  common  peo- 
ple, from  the  streets  and  everywhere,  met  and 
decided  lawsuits.  Questions  of  the  right  of  prop- 
erty ;  questions  of  life  and  death  of  the  individ- 


OF   THE    UNITED    STATES.  15 

iial ;  questions  of  banishment  and  censure  of  their 
officers;  questions  of  the  proprietorship  of  land; 
questions  of  the  election  of  the  chief  officers; 
questions  of  making  war  and  peace, — all  were 
submitted  in  that  democracy  to  the  people  that 
could  gather  together  in  the  pubhc  buildings  of 
that  little  city  of  Athens.  But  those  of  you  who 
have  read  its  history  know  that  it  w^as  a  perpetual 
scene  of  turmoil ;  how  little  security  there  was 
for  life  when  they  made  their  best  men  drink  the 
hemlock,  and  banished  their  best  generals  for  a 
year  and  perhaps  for  life.  While  it  stimulated 
the  intellect  of  that  race  and  made  them  prize 
human  effort  directed  in  channels  of  imagination, 
of  science,  and  of  literature,  it  still  was  far  from 
being  a  place  where  personal  rights  were  respect- 
ed, and  where  any  man  of  modern  times  would 
be  willing  to  make  a  home. 

But  our  forefathers,  when  they  got  together, 
did  not  adopt  either  of  these  forms,  though  it  is 
common  to  say  that  ours  is  a  government  of  the 
democracy.  In  the  true  sense  of  a  democracy, 
by  which  all  the  acts  of  the  government  are  per- 
formed by  all  the  people,  it  is  about  as  far  from 
a  democracy  as  any  other  civilized  government 
that  we  know  of.  But  they  determined  that 
the  people  should  be  felt,  and  they  made  what 


16  LECTURES    ON   THE   CONSTITUTION 

we  call  a  composite  government — a  representa- 
tive republican  government  —  a  government  in 
which  the  powers  that  belong  to  all  sovereignties 
were  divided  and  placed  in  different  depositories ; 
and  the  question  of  that  division  was  one  of 
very  great  interest.  The  proper  division  of 
these  powers  has  since  come  to  be  recognized 
and  assigned  in  all  good  governments,  and  that 
division  is  into  the  executive,  legislative,  and 
judicial  branches  or  departments.  By  executive, 
is  meant  the  branch  which  enforces  the  law ;  by 
legislative,  is  meant  the  branch  which  enacts  the 
law;  and  by  judicial,  is  meant  the  branch  which 
administers  the  law,  as  regards  both  public  and 
private  rights,  as  between  the  citizens  themselves 
and  betw^een  the  citizens  and  the  government. 
You  will  observe,  however,  in  this  Constitution, 
that  the  lines  which  mark  that  division  are  not 
perfect.  Perhaps  it  is  impossible  that  they  should 
be  perfect.  Perhaps  it  is  desirable  that  they 
should  be  more  perfect  than  they  are.  As  re- 
gards the  executive  branch  of  the  government, 
for  instance,  that  was  not  completely  vested  in 
the  President;  for  we  find  that  the  Senate  was 
required  to  give  its  assent  to  all  treaties  made  by 
the  President  before  they  were  valid.  The  Sen- 
ate is  also  required  to  confirm  all  higher  uomina- 


OF   THE    UNITED    STATES.  17 

tions  to  office  before  they  become  valid  appoint- 
ments. So  that  these  two  great  functions,  which 
are  usually  classed  as  executive  functions  of  the 
government, — appointment  to  office  and  making 
treaties, — are  divided,  to  some  extent,  in  their  re- 
sponsibility and  in  the  forms  necessary  to  give 
them  efficacy,  between  the  President  of  the  United 
States,  who  is  the  executive,  and  the  Senate  of 
the  United  States,  which  is  one  of  the  branches 
of  the  legislative  department. 

So,  also,  declaring  war  and  making  peace, 
which  in  all  other  respects  is  held  to  be  an  ex- 
clusively executive  function,  and  which  in  the 
popular  government  of  England  remains  in  the 
Crown  alone — the  Crown  recently  having  de- 
clared war  without  asking  Parliament  and  having 
made  peace  in  the  same  manner,  and  that  being 
the  common  form  of  doing  the  thing — is  a  func- 
tion in  which  the  executive  and  legislative 
branches  of  our  government  participate.  The 
Constitution  of  the  United  States  says  that  Con- 
gress shall  have  power  to  declare  w\ir;  and  the 
President  takes  part  in  that  matter  only  as  he  is 
part  of  the  legislative  branch.  So  when  you 
come  to  the  legislative  branch  of  the  govern- 
ment, you  will  find  that  that  is  not  separate 
from   the   executive,  because  our   laws  require 


18  LECTURES    ON    THE   CONSTITUTION 

that  they  shall  be  signed  by  the  President.  He 
thus  becomes  an  important  part  of  the  legislative 
department  of  the  government;  and  if  he  does 
not  choose  to  sign  them  he  usually  sends  them 
back  with  his  reasons  and  objections,  which  is 
commonly  called  the  veto,  and  it  then  requires 
two-thirds  of  the  legislative  houses  to  enact  them 
into  laws  over  that  veto.  So  that  the  legislative 
power  is  not  confided  wholly  to  the  legislative 
branch. 

Perhaps  the  judicial  power  is  more  nearly  left 
perfect  in  the  hands  of  the  judiciary  than  any 
other,  but  not  wholly  so ;  for  the  power  of  fram- 
ing impeachments  and  trying  them,  which  is 
eminently  a  judicial  function — as  much  so  as  it 
is  to  indict  a  man  and  try  him  for  murder — we 
find  belongs  wholly  and  exclusively  to  the  two 
branches  of  the  legislative  department.  The 
House  of  Kepresentatives  finds  the  impeachment, 
and  the  Senate  tries  it. 

But,  after  all,,  those  are  only  exceptions ;  and 
it  remains  true,  that  for  general  purposes,  and 
very  useful  purposes,  the  best  feature  of  this 
Constitution  is  that  it  does  make  this  substantial 
separation  of  power  among  these  three  depart- 
ments. , 

These  departments,  under  our  form  of  gov- 


OF   THE   UNITED   STATES.  19 

ernment,  are  co-ordinate  in  dignity.  Neither/ 
of  them  is  intended,  by  the  theory  of  our  ConJ 
stitution,  to  be  subjected  to  the  other.  Tha 
President  cannot  be  compelled  to  make  a  treat}! 
or  appoint  anybody  to  office  that  he  does  not 
want  to.  The  legislature  cannot  be  compelled 
to  pass  any  laws,  and  the  legislature  alone  can 
pass  laws.  The  judiciary  alone  can  construe  the 
laws  and  enforce  the  laws  by  judgments  of  the 
courts.  In  the  case  of  Dodge  v.  Woolsey,  in  18 
Howard,  Mr.  Justice  Wayne  has  advanced  this 
idea  in  language  so  much  better  than  any  I  can 
use,  that  I  give  his  own  words  ; 

''The  departments  of  the  government  are  legislative, 
executive,  and  judicial.  They  are  co-ordinate  in  degree 
to  the  extent  of  the  powers  delegated  ,to  each  of  them. 
Each  in  the  exercise  of  its  power  is  independent  of  the 
others;  but  all  rightfully  done  by  either  is  binding  upon 
the  others.  The  Constitution  is  supreme  over  all  of  them, 
because  the  people  who  ratified  it  liave  made  it  so." 

When  the  Constitution  was  first  framed  it  was 
received  by  a  great  many  thinking  people  with  a 
great  deal  of  distrust.  An  examination  of  the 
history  of  the  conventions  of  the  States  which 
were  called  to  ratify  and  confirm  that  instru- 
ment, without  which  it  would  have  had  no  effi- 
cacy, will  show  that  it  was  fiercely  assailed,  and 
the  debates  uixMi^^tfvpi  rQ£Kird4o  its  adoption  in 

v^  OF   THE  'A 

UNIVERSITY 


20  LECTURES   ON   THE   CONSTITUTION 

several  of  the  States  showed  that  the  issue  was 
doubtful. 

It  is  well,  perhaps,  to  consider  for  a  moment 
some  of  the  objections  to  that  instrument  in 
the  light  of  ninety  years'  experience.  One  of 
the  greatest  was  that  it  conferred  too  much 
power  upon  the  central  or  Federal  government, 
and  curtailed  too  largely  the  powers  of  the  State 
govei-nments.  You  must  remember  that  these 
colonies  had  just  been  emancipated  from  the 
parent  government.  They  had  worked  together 
for  a  short  time,  and  not  very  harmoniously. 
Each  man  felt  that  in  his  own  State  he  had  a 
larger  interest  than  he  had  in  the  welfare  of  all 
tlie  States ;  and  it  is  one  of  the  most  creditable 
and  remarkably  things  that  the  superior  knowl- 
edge and  influence  of  a  few  great  minds  were 
able  to  overcome  these  prejudices  and  enact  that 
Constitution  into  a  form  of  government.  But 
several  of  the  States,  in  the  act  of  adopting  it,  pro- 
posed amendments  to  be  made  under  the  provis- 
ion in  that  instrument  for  amendments ;  and  with- 
in two  years  after  it  was  ratified  Congress  passed 
and  proposed  to  the  different  States  thirteen 
amendments  to  that  instrument,  eleven  of  which 
were  ratified  by  the  requisite  number  of  States 
to  make  them  part  of  the  Constitution.    In  those 


OF   THE   UNITED    STATES.  21 

amendments,  when  you  look  at  them  carefully, 
you  will  see  this  distrust  of  the  power  of  the  cen- 
tral government,  and  this  desire  to  protect  the 
States  from  being  overwhelmed  and  annihilated 
by  this  power.  That  fight  —  that  contest,  I 
should  rather  say — has  gone  on,  I  might  say,  to 
the  present  time.  I  would  be  glad  to  say  that 
with  the  recent  war  it  was  settled ;  but  while  it 
has  undergone  various  discussion,  it  is  not  prac- 
tically settled.  But  it  is  sufficient  to  say — I  think 
I  can  venture  to  say ;  others  may  disagree  with 
me — that  the  experience  of  ninety  3'ears  under 
this  government  has  shown  that  danger  to  the 
perpetuity  of  government,  danger  to  the  people 
of  this  country,  is  not  in  the  central  power,  and 
was  not  in  the  central  power,  but  was  in  the 
power  of  the  States.     [Applause.] 

Another  objection,  second  in  importance  in 
the  minds  of  those  who  were  not  favorable  to 
that  Constitution,  was  the  power  of  the  exec- 
utive. It  was  said  to  be  inconsistent  with  the 
genius  of  the  government  whic^  we  were  es- 
tablishing, that  any  one  man  should,  for  the 
period  of  four  years,  exercise  ttie  extraordinary 
power  which  that  instrument  vested  in  the  Pres- 
ident of  the  United  States.  It  was  said  that  the 
appointment  of  all  the  officers  of  the  Federal 


22  LECTURES    ON   THE   CONSTITUTION 

government,  the  distribution  of  all  its  patronage, 
the  control  of  its  army  and  its  navy,  would,  in 
process  of  time,  enable  some  man  to  build  up  a 
power  which  could  not  be  resisted;  that  some 
man  would  arise  who,  by  that  power  and  with 
that  inclination,  would  destroy  the  really  demo- 
cratic features  of  our  government,  and  establish 
a  monarchy  in  its  place. 

Now,  of  all  the  delusions,  of  all  the  mistakes 
which  our  ancestors  made,  that  seems  to  have 
been  at  once  the  most  likely  to  be  made,  yet 
which  has  practically  turned  out  to  be  most  un- 
true. 

It  is  my  deliberate  opinion  that,  of  all  the  three 
branches  of  government,  the  executive  branch  has 
been  in  time,  under  the  construction  given  that 
instrument  and  its  practical  administration,  most 
shorn  of  the  powers  which  the  Constitution  grant- 
ed it.  The  President  of  the  United  States  for 
the  first  forty  or  iifty  years  did  practically  nomi- 
nate all  the  officers;  he  selected  his  Cabinet,  a 
few  private  friends,  occasionally  a  member  of 
Congress  or  two,  making  suggestions.  But,  with- 
in the  memory  of  many  men  around  me,  the 
time  arrived  when  the  President  (as  the  gentle- 
man who  has  travelled  around  the  world  with 
General  Grant  reports  him  as  saying)  but  regis- 


OF   THE    UNITED    STATES.  23 

ters  tbe  edict  of  members  of- Congress  in  appoint- 
ments to  office;  tbat  is  to  say,  in  tbe  function 
about  wbicb  mainly  tbe  executive  is  employed, 
he  bas  become  subjugated  to  the  legislative 
branch  of  the  government;  and  of  all  the  de- 
lusive ideas,  of  all  the  fallacies  that  ever  entered 
the  brain  of  anybody  in  this  world,  the  most 
delusive  and  fallacious  is  the  idea  that  any  exec- 
utive, that  a  Jackson  or  a  Grant,  or  anybody  in 
this  country,  will  ever  make  himself  a  perpetual 
dictator  in  our  time  and  generation,  or  in  gen- 
erations to  come.     [Applause.] 

The  branch  of  the  government  which  has 
grown  in  its  powers,  which  perhaps  a  sagacious 
man  mfght  have  seen  would  so  grow,  is  the  legis- 
lative department  of  the  government.  Coming, 
as  it  does,  more  immediatel}'  from  the  people,  at 
least  one  branch  of  it,  and  all  of  it  representing 
either  tbe  States  or  the  people,  who  look  to  their 
Senators  and  to  their  members  as  representing 
them  in  all  their  legislation  and  all  that  looks 
like  legislation,  and  a  great  deal  that  is  not  legis- 
lation,— the  people  tolerate  in  these,  their  repre- 
sentatives and  members,  what  they  will  not  tole- 
rate in  the  executive,  what  they  will  not  tolerate 
in  the  judicial  department  of  the  government; 
because  they  say,  ''Jg^e^tfeB^^^tfeaUfthey  do  badly 


24  LECTURES    ON   THE   CONSTITUTION 

this  year,  we  can  turn  them  out  next,  and  we  are 
not  afraid  of  them."  But  this  has  been  a  very 
unfortunate  sentiment.  I  speak  it  with  due  def- 
erence to  a  co-ordinate  branch  of  the  govern- 
ment. I  have  no  doubt  that  the  dangers  in  our 
form  of  government  are  greatest  in  the  legisla- 
tive branch  of  it.  They  are  extending  their 
borders,  and  they  are  making  broad  their  phy- 
lacteries in  every  direction.  They  pass  laws 
sometimes  which  are  unconstitutional,  and  they 
assei't  powers  which  are  executive  and  juchcial 
in  their  nature  and  character. 

The  judicial  branch  of  the  government  is,  of 
all  others,  the  weakest  branch.  It  has  no  army; 
it  has  no  navy;  it  has  no  press;  it  has  no  officers 
except  its  marshals,  and  they  are  appointed  by 
the  President  and  confirmed  by  the  Senate;  and 
the  marshals  that  we  send  our  processes  to  can- 
not be  removed  by  us,  but  they  may  be  removed 
any  day  by  the  executive.  The  clerks  whom 
they  permit  us  in  some  form  or  other  to  appoint, 
have  salaries  and  compensations  regulated  by 
the  legislature ;  and  a  clerk  who  gets  $20,000  in 
fees,  pays  all  but  |3,500  into  the  Treasury  of  the 
United  States.  We  are,  then,  so  far  as  the  ordi- 
nary forms  of  power  are  concerned,  by  far  the 
feeblest  branch  or  department  of  the  govern- 


OF   THE    UNITED    STATES.  25 

ment.  We  have  to  rely — I  beg  pardon  for  using 
the  personal  prononn  in  this  discussion — but  the 
judiciary  have  to  rely  on  the  coniidence  and  re- 
spect of  the  public  for  their  weight  and  influence 
in  the  government ;  and  I  am  happy  to  say  that 
the  country,  the  people,  and  the  other  branches 
of  the  government  have  never  been  found  want- 
ing in  that  respect  and  in  that  confidence.  It  is 
one  of  the  best  tributes  to  the  American  nation — 
a  tribute  which  it  deserves  above  all  others  even 
of  the  Anglo-Saxon  race — a  tribute  which  can  be 
paid  to  no  other  race  like  the  Anglo-Saxon  ^ 
race — that  they  submit  to  the  law  as  expounded 
by  the  judiciary.    [Applause.] 

Under  all  the  excitement  of  wealth ;  of  money; 
of  the  contest  of  raih'oads;  of  political  existence —  ^ 
everything  which  can  be  got  before  the  court — 
everything  which  can  come  fairly  within  judicial 
cognizance — our  people  seem  to  think  is  safe. 
And  whatever  may  be  said  or  felt  about  the 
recent  trouble  in  the  State  of  Maine,  there  is  no 
grander  phenomenon  to  be  found  in  the  history 
of  this  country  than  a  l)ody  calling  itself  a  legal 
legislature  and  government  quietly  laying  down 
its  functions  and  dispersing  at  the  mere  opinion 
of  a  court  that  they  were  not  the  proper  govern- 
ment. [Applause.] 
2 


26  LECTURES    ON    THE    CONSTITUTION 

Of  course,  gentlemen,  there  are  nice  questions 
between  these  various  departments  of  the  govern- 
ment as  to  the  Hues  of  demarkation ;  and  it  has 
always  been  an  anxious  question,  and  always  must 
be  one,  where  there  is  a  conflict  in  the  claims  of 
these  branches  of  the  government.  While  it  is 
the  duty  of  the  court  to  construe  the  great  instru- 
ment, the  Constitution,  whenever  it  shall  come 
before  it  in  a  fair  judicial  proceeding,  and  it  can 
construe  it  in  no  other  way, — for  it  is  a  dehision, 
it  is  a  mistake,  the  idea  that  the  Supreme  Court 
of  the  United  States  w^as  created  with  one  of  its 
special  functions  to  interpret  and  construe  that 
instrument, — I  say  while,  however,  it  is  the  spe- 
cial function  of  the  courts  to  construe  the  Consti- 
tution in  a  judicial  proceeding,  with  parties  prop- 
erly before  them,  it  is  equally  the  duty  of  each 
member  of  Cono-ress  and  of  the  executive  to 
make  that  construction  for  himself  when  he  is 
called  to  act  within  the  sphere  of  his  duty.  And 
I  think  myself  I  have  changed  one  of  my  beliefs 
of  early  life,  when  I  used  to  think  that  when 
a  Marshall  and  his  compeers  had  decided  that 
the  Bank  of  the  United  States  -was  a  finan- 
cial institution  authorized  by  the  Constitution 
of  the  United  States,  the  legislative  and  execu- 
tive branches  should  also  concede  that  fact.     I 


OF    THE    UNITED    STATES.  27 

am  prepared  to  admit,  that  while  thev  are  bound 
to  consider  that  in  that  particular — that  is,  its 
execution  of  the  law  as  betw^een  the  parties — all 
the  other  branches  of  the  government  nmst  yield, 
yet  when  it  comes  to  the  conscience  of  any  mem- 
ber of^  Congress  or  any  executive  to  say,  "  Can  I 
sign  a  bill  ?"  or  "  Can  I  vote  for  a  measure  ?"  it 
is  for  him-  to  decide,  on  the  best  lights  he  has, 
whether  the  act  he  is  going  to  do  is  within  the 
constitutional  power  of  the  body  of  wdiich  he  is  a 
member.  Therefore  you  see  the  difficulty  in  get- 
ting a  settled  construction  of  this  instrument. 
And  since  every  branch  of  the  government,  when 
called  on  to  act  originally,  is  bound  to  act  on  tlie 
judgment  it  forms  of  its  own  powers,  you  can 
understand  the  reason  that  for  eighty  or  ninety 
years  the  question  of  the  relations  of  the  States 
to  the  Federal  government  should  remain  an 
open  and  undecided  question. 

We  are,  however,  getting  a  body  of  decisions 
of  recognized  principles.  The  instrument  is  being 
construed  by  the  judicial  branch  more  than  the 
others,  but  largely  by  all  others,  in  the  light  of  the 
events  which  have  arisen  to  test  it.  The  construc- 
tion which  was  put  upon  the  Constitution  during 
the  recent  insurrection — the  powers  that  could  be 
exercised  in  such  an  emergency  by  the  President, 


28  LECTURES    ON   THE   CONSTITUTION 

by  the  War  Department,  by  the  Legislature,  by 
the  Judiciary,  all  have  been  tested — all  have  un- 
dergone investigation;  and  while  no  man  can 
say  that  all  the  decisions  have  been  correct,  be- 
cause they  have  been  varying,  it  must,  in  the 
light  of  any  impartial  mind,  be  clear  that  we  are 
completing  a  construction  and  are  deciding  a 
great  many  things  that  will  remain  forever,  with 
regard  to  the  Constitution. 

It  is  very  desirable  that  it  should  be  so.  All 
loose  construction  of  authority  is  dangerous ;  all 
construction  of  authority  too  limited  to  serve  the 
purpose  for  which  it  is  given  is  injurious.  You 
must  look  at  that  instrument  in  the  light  of  the 
purposes  which  it  was  intended  to  answer;  in 
the  light  of  the  evils  it  was  intended  to  remedy; 
in  the  light  of  the  fact  that  we  w^ere  a  dissolving 
people,  and  the  instrument  was  intended  to  bind 
us  anew  forever;  in  the  light  of  the  fact  that  the 
government  was  going  to  pieces  for  want  of  power 
to  protect  itself,  and  we  must  consider  that  one 
of  the  purposes  of  the  Constitution  was  to  give 
the  government  that  power;  in  the  light  of  the 
fact  that  the  Confederacy — the  government  un- 
der the  Articles  of  Confederation — could  only 
request  the  States  to  do  a  great  deal  that  was 
necessary  to  carry  on  the  Federal  government, 


.t:.3 


OF   THE    UNITED    STATES. 


and  it  was  desirable  to  give  the  new  governBtiejat  <P\. 
the  power  of  operating  directly  upon  the  pe<)|>^i^     ^ 
without  going  through  the  instrumentalitj'of  tlla^__^ 
States,  and  that  instead  of  laws  which  before  that 
Constitution  was  made  were  intended  to  have 
effect  through  the  State  legislatures,  the  govern- 
ment should  now  have  direct  effect  through  the 
legislation  of  Congress — the  action  of  the  legis- 
lative branch — and  the  judiciary,  upon  the  peo- 
ple themselves,  without  the  consent,  and  even 
against  the  Welshes,  of  the  States,  if  it  were  nec- 
essary. 

In  all  these  ways,  when  you  come  to  construe 
this  instrument  like  a  remedial  statute,  like  a  con- 
tract between  individuals,  it  must  be  construed 
in  the  light  of  the  times  in  which  it  was  made — 
of  the  evils  to  be  remedied,  of  the  good  to  be 
effected,  and,  above  all,  in  the  light  of  the  idea 
that  it  was  made  to  create  a  perpetual  govern- 
ment of  the  people,  among  the  people,  and  by 
the  people. 


80  LECTURES    ON   THE    CONSTITUTION 


Second  Lecture. 


On  last  Friday  evening,  gentlemen,  you  will 
remember  that  I  closed  my  remarks  by  some 
observations  on  the  division  which  the  Constitu- 
tion made  of  the  powers  to  be  exercised  by  the 
national  government  into  the  three  departments, 
legislative,  executive,  and  judicial.  As  students 
of  law,  I  take  it  for  granted  that  the  branch  of 
the  government  in  which  you  are  most  interested, 
or  at  least  in  which  you  are  most  interested  in 
having  an  exposition  of  its  powers  and  duties,  is 
the  judicial  branch,  and  that  is  the  subject  on 
which  I  propose  to  address  you  this  evening. 

After  the  manner  of  the  clergy,  I  presume 
that  the  best  thing  I  can  do  is  to  read  you  m}^ 
text ;  and  as  the  whole  chapter  is  not  a  very 
long  one,  although  a  very  important  one,  I  will 
read  you  the  third  article  of  the  Constitution. 
That  instrument  devotes  one  article  to  the  legis- 
lative, one  to  the  executive,  and  one  to  the  judi- 
cial branch,  and  these  are  the  main  articles  of  the 
Constitution.     There  are  then  some  provisions 


OF   THE    UNITED    STATES.  31 

establishing  private  rights;  some  provisions  con- 
cerning the  powers  of  the  two  houses ;  but  the 
main  body  of  the  Constitution  is  to  be  found  in 
the  three  articles.  The  judicial  article  comes 
third  and  last.     It  says  : 

"•  The  judicial  power  of  tlie  United  States  shall  be  vested 
in  one  Supreme  Court,  and  in  such  inferior  courts  as  the 
Con(?ross  may  from  time  to  time  ordain  and  establish. 
The  iud*?es,  both  of  the  supreme  and  inferior  courts,  shall 
hold  their  offices  durinj^good  behavior,  and  shall,  at  stated 
times,  receive  for  their  services  a  compensation,  which 
shall  not  be  diminished  durino^  their  continuance  in  office. 

"Sec.  2.  The  judicial  power  shall  extend  to  all  cases, 
in  law  and  equity,  arising  under  this  Constitution,  the 
laws  of  the  United  States,  and  treaties  made,  or  which 
shall  be  made,  under  their  authority ;  to  all  cases  affect- 
ing ambassadors,  other  public  ministers,  and  consuls;  to 
all  cases  of  admiralty  and  maritime  jurisdiction;  to  con- 
troversies to  which  the  United  States  shall  be  a  party;  to 
controversies  between  two  or  moie  States;  between  a 
State  and  citizens  of  another  State  ;  between  citizens  of 
different  States;  between  citizens  of  the  same  State  claim- 
ing lands  under  grants  of  different  States,  and  between  a 
State,  or  the  citizens  thereof,  and  foreign  States,  citizens, 
or  subjects. 

"In  all  ca?:es  affecting  ambassadors,  other  public  min- 
isters, and  consuls,  and  those  in  which  a  State  shall  be 
party,  the  Supreme  Co«n-t  shall  liave  original  jurisdiction. 
In  all  the  other  cases  before  mentioned,  the  Supreme  Court 
shall  have  appellate  jinisdiction,  both  as  to  law  and  fact, 
with  such  exceptions  and  under  such  regulations  as  the 
Consfress  shall  make. 


82  LECTURES    ON   THE   CONSTITUTION 

"The  trial  of  all  crimes,  except  in  cases  of  impeach- 
ment, sliall  be  by  jury,  and  such  trial  shall  be  held  in  the 
State  wliere  the  said  crimes  shall  have  been  committed ; 
but  wlien  not  committed  witlnn  any  State,  tlie  trial  shall 
be  at  sncli  place  or  places  as  the  Congress  may  by  law 
have  directed. 

"Sec.  3.  Treason  against  the  United  States  shall  con- 
sist oidy  in  levying  war  against  them,  or  in  adhering  to 
their  enemies,  giving  them  aid  and  comfort. 

"  No  person  shall  be  convicted  of  treason  unless  on  the 
testimony  of  two  witnesses  to  the  same  overt  act,  or  on 
confession  in  open  court. 

'•The  Congress  shall  have  power  to  declare  the  punish- 
ment of  treason  ;  but  no  attainder  of  treason  shall  work 
corruption  of  blood,  or  forfeiture  except  during  the  life 
of  the  person  attainted." 

Now,  I  propose  to  turn  your  attention  first  to 
the  second  section : 

"The  judicial  power  shall  extend  to  all  cases,  in  law 
and  equity,  arising  under  this  Constitution,  the  laws  of  the 
United  States,  and  treaties  made,  or  wliich  shall  be  made, 
under  their  authority." 

The  first  thing  that  justifies  or  requires  any 
criticism  is  on  the  words  "judicial  power." 
What  is  judicial  power?  It  would  not  do  to 
answer  that  it  is  power  exercised  by  the  courts, 
because  one  of  the  very  things  to  be  determined 
is  what  power  the  courts  may  exercise;  and  it  is 
very  difficult  to  find  any  exact  definition  made 
to  hand.     I  know  it  cannot  be  found  in  any  of 


OF   THE    UNITED    STATES.  33 

the  old  treaties,  or  any  of  the  old  English  au- 
thorities or  judicial  decisions,  for  a  very  obvious 
reason,  that  while  in  a  general  way  they  had  this 
division  between  the  legislative  and  judicial 
power,  yet  their  legislature  was  in  the  habit  of 
exercising  a  very  large  part  of  the  judicial  power 
of  the  country.  The  House  of  Lords  was  often 
the  court  of  appeals,  and  they  were  in  the  habit 
of  passing  bills  of  attainder  and  of  enacting  con- 
victions for  treason  in  Parliament.  The  judicial 
power  is  defined,  perhaps,  better  in  some  of  the 
reports  of  our  own  courts,  especially  the  Supreme 
Court  of  the  United  States,  than  in  any  other 
place,  because  it  has  oftener  been  the  subject  of 
comment,  oftener  necessary  to  be  decided,  in  that 
court,  than  anywhere  else.  The  judicial  power 
is  the  power  of  a  court  to  decide  and  pronounce 
a  judgment  and  carry  it  into  effect  between  per- 
sons and  parties  who  bring  a  case  before  the 
court  for  judicial  decision.  And  hence,  you  see, 
after  the  words  "judicial  power,"  the  language 
goes  on,  "shall  extend  to  all  cases"  of  a  partic- 
ular character,  describing  what  character.  So 
that,  before  there  can  be  any  proper  exercise  of 
the  judicial  po\yer,  there  must  be  "a  case"  pre- 
sented in  court  for  its  action.  A  case  implies 
parties ;  a  case  implies  an  assertion  of  rights ;  a 


34  LECTURES    ON   THE   CONSTITUTION 

case  implies  a  wrong  to  be  remedied  ;  and  our 
decisions  in  the  Supreme  Court  of  the  United 
States,  and  in  the  other  various  courts,  are  full 
of  definitions  of  what  a  case  is.  I  will  read  some 
of  them  very  shortly,  as  I  find  them  in  Mr.  Pas- 
chal's  "Annotated  Constitution,"  a  very  valuable 
work  in  giving  you  the  authorities  to  which  you 
had  better  refer,  so  that  you  may  see  the  whole 
of  their  leading  features.  I  am  compelled  to 
omit  much  in  the  short  time  to  which  I  am  lim- 
ited in  these  lectures. 

"A  case" — says  Chief  Justice  Marshall,  in  the 
case  of  Osborn  against  the  United  States  Bank, 
9th  Wheaton,  p.  319 — "a  case  arises,  within  the 
meaning  of  the  Constitution,  when  any  question 
respecting  the  Constitution,  treaties,  or  laws  of 
the  United  States  has  assumed  such  a  form  that 
the  judicial  power  is  capable'  of  acting  upon  it." 

And  in  this  connection,  it  is  proper,  I  think, 
that  I  should  endeavor  to. correct  a  very  erro- 
neous impression  that  prevails  with  regard  to 
the  powers  of  the  Supreme  Court  of  the  United 
States  as  the  expounder  of  the  Constitution.  I 
have  seen  it  asserted,  even  in  popular  treatises, 
in  public  speeches,  and  in  political  harangues, 
that  the  Supreme  Court  of  the  United  States  is 
the  final  expounder,  and  that  it  \Yas  made  for  the 


OF   THE    UNITED    STATES.  35 

purpose  of  expounding  the  Constitution,  and  that 
one  of  its  priraarj-  functions  is  to  do  that.  But 
it  has  been  over  and  again  held  in  our  court  that 
all  we  can  do  in  the  way  of  expounding  the  Con- 
stitution is  to  decide  the  questions  in  which  the 
Constitution  may  be  involved  in  a  suit  between 
proper  parties.  To  be  sure,  in  some  cases  these 
parties  have  been  very  dignified  ones.  They 
have  been  the  United  States;  they  have  been 
States  suing  each  other  in  our  courts ;  but  oft- 
ener  than  otherwise — I  should  say,  nine  times 
out  of  ten  that  the  court  has  been  called  upon  to 
construe  the  Constitution  of  the  United  States — 
it  has  been  a  question  of  right  between  private 
individuals,  in  which  the  validity  of  a  law,  or 
of  a  right  asserted  by  one  side  and  denied  by 
the  other,  has  to  be  settled  by  the  Constitu- 
tion of  the  United  States.  So  that  we  only  do 
in  our  way  in  a  higher  position — as  being  the 
last  court  to  which  such  questions  can  be 
brought — what  every  court  in  the  United  States 
has  to  do,  whether  it  is  a  State  court,  a  Federal 
court,  or  any  other  court.  We  only  decide  such 
questions  as  they  arise  in  the  progress  of  ordi- 
nary litigation. 

This,  then,  is  what  I  have  to  say  upon  the 
subject  of  cases,  as  the  Constitution  is  affected. 


3b  LECTURES    ON   THE   CONSTITUTION 

with  regard  to  the  word  "  cases."  "  The  judicial 
power  shall  extend  to  all  cases,  in  law  and  in 
equity,  arising  under  this  Constitution,  the  laws 
of  the  United  States,  and  the  treaties  made,  or 
which  shall  be  made,  under  their  authority." 
That  is  to  say,  the  judicial  power  of  the  Federal 
government  extends  to  all  cases  where  a  right 
exists  under  the  Constitution,  a  right  under  the 
laws  of  the  United  States  which  are  made  in 
accordance  with  the  Constitution,  or  a  right  un- 
der a  treaty  which  shall  be  made  under  the  au- 
thority of  the  Constitution. 

That  class  of  cases  the  Federal  power  extends 
over,  covers  them,  and  they  come  within  its  ju- 
risdiction. "All  cases,  in  law  and  in  equity." 
There  is  a  separate  clause  with  regard  to  ad- 
miralty, which  I  will  speak  of  presently.  It 
must  be  with  the  exception  of  admiralty  "in 
law  or  in  equity," — and  an  attempt  has  been 
made  to  exclude  a  very  large  class  of  cases  aris- 
ing in  the  State  courts,  and  in  other  courts,  which 
were  of  an  anomalous  character ;  remedies  given 
by  peculiar  modes  of  proceeding — summary  rem- 
edies by  attachment,  and  summary  proceedings 
at  variance  with  the  common  law,  which  were 
therefore  said  not  to  be  suits  at  law,  and  which 
yet  did  not  come  under  the  head  of  equity  juris- 


OF    THE    UNITED    STATES.  87 

prudence.  But  the  decisions  of  the  Supreme 
Court  of  the  United  States  are  abundant  to  the 
effect  that,  with  the  exception  of  admiralty,  all 
the  modes  of  procedure  for  the  assertion  of  rights 
must  be  ranged  under  the  one  class  or  the  other, 
of  law  or  equity,  within  the  meaning  of  that 
clause  of  the  Constitution,  Equity  is  a  limited 
jurisdiction  which  has  grown  up  since  the  com- 
mon law,  which  in  some  sense  is  a  restriction  of 
and  departure  from  the  common  hiw.  There  is 
not  much  difhculty  as  to  what  are  cases  in  equity ; 
and  I  have  no  doubt  you  have  an  able  professor 
who  has  told  you,  or  will  tell  you,  what  is  equity 
jurisdiction.  It  is  sufficient  to  say  that  the  Fed- 
eral courts  have  held  that  all  the  cases  that  are 
neither  admiralty  nor  equity  are,  within  this 
clause  of  the  Constitution,  cases  at  law.  Indeed, 
the  Supreme  Court  have  held — the}'  have  been 
compelled  to  hold,  in  regard  to  the  improve- 
ments, I  will  venture  to  say,  in  the  modes  of  pro- 
cedure which  have  been  adopted  by  the  codes  of 
the  various  States,  in  most  of  which  equity  and 
law  have  been  consolidated,  and  in  reference  to 
many  statutes  giving  new  rights,  new  modes  of 
procedure,  new  i-emedies — the  Supreme  Court 
have  been  compelled  to  hold  that,  when  the  Fed- 
eral courts  come  to  administer  those  rights  and 


38  LECTURES    ON   THE   CONSTITUTION 

those  remedies,  thev  must  rano-e  them  on  the 
dockets  of  those  courts  on  the  equity  side,  or  on 
the  law  side,  as  the  nature  of  the  right  asserted, 
or  of  the  remedy  given,  may  require.  We 
do  this  as  equity  is  understood  and  was  under- 
stood in  the  English  courts  at  the  time  of  the 
Revolution  ;  and  we  have  held  that  in  the  Fed- 
eral courts  no  action  of  the  States,  no  statutes 
of  the  States,  no  laws  of  the  States,  or  rules 
which  have  heen  adopted  at  law  or  in  equity 
in  State  courts — that  none  of  them  can  abolish 
the  separate  and  distinct  equity  jurisdiction  of 
the  Federal  courts;  and  that  wherever  a  case 
is,  in  its  nature,  one  which  belongs  to  the  equi- 
table jurisdiction  of  the  courts,  it  must  be  tried 
on  the  chancery  side  of  the  Federal  court  which 
has  taken  charge  of  it.  One  of  the  neces- 
sary distinctions  in  that  regard  is,  that  another 
provision  of  the  Constitution  declares  that  in  all 
suits  at  law  the  value  of  which  exceeds  twenty 
dollars,  every  one  shall  have  the  right  of  trial  by 
jury,  and  the  right  of  trial  by  jury  is  no  part  of 
the  system  of  equity  jurisprudence;  so  that  the 
Federal  courts  have  been  compelled  to  keep 
separate  and  distinct,  cases  at  law  and  cases  in 
equity. 

"The  judicial  power  shall  extend  to  all  cases, 


OF    THE    UNITED    STATES.  39 

ill  Uiw  and  equit}',  arising  under  this  Constitu- 
tion, the  laws  of  the  United  States,  and  treaties 
made,  or  which  shall  he  made,  under  their  au- 
thority." That  is  to  say,  a  ease  arises  under  the 
Constitution  whenever  some  man's  constitutional 
right  is  denied  to  him ;  some  right  which  this  in- 
strument, gives  him — right  of  property,  right  to 
liberty,  right  to  vote — whatever  right  he  can 
trace  under  this  Constitution.  That  is  a  right, 
which,  if  it  is  impinged,  or  denied,  or  delaj'ed,  he 
can  bring  into  the  courts  of  the  United  States  by 
virtue  of  that  provision  of  the  Constitution. 

And  so  of  the  laws  of  the  United  States:  "all 
cases  arising  under  the  laws  of  the  United  States." 
Now%  the  Constitution  itself  is  a  very  general 
instrument.  The  rights  which  it  confers  are  in 
very  general  language;  but  these  rights,  these 
duties,  these  obligations,  have  been  put  into  full 
operation — have  been  defined  and  perfected  by 
statutes  which  are  called  laws  of  the  United  States. 
Whenever,  therefore,  an  individual  has  a  claim 
or  a  right  under  an  act  of  the  United  States 
which  he  can  enforce,  which  can  only  be  en- 
forced, or  which  he  seeks  to  enforce  by  the  judi- 
cial power,  the  place  to  seek  that  power  is  in 
some  of  the  judicial  departments  or  branches  of 
the  United  States. 


40  LECTURES    ON    THE    CONSTITUTION 

*'The  treaties  made,  or  wblcb  shall  be  made, 
under  tbeir  autbority."  It  is  proper  tbat  I  sbould 
make  some  quaUfication  in  regard  to  the  word 
*'  treaties."  A  treaty  always  means  a  compact  or 
convention  between  two  independent  nations  or 
governments.  Independence  is  necessary,  at 
least  quasi;  some  degree  of  independence  is  neces- 
sary in  order  tbat  the  treaty  may  exist  between 
the  parties  who  make  it.  So  tbat,  so  far  as  the 
treaty  itself  is  a  national  obligation  to  be  enforced 
by  the  action  of  the  States  who  have  made  it,  by 
war,  or  by  negotiations,  or  by  modification,  or 
by  a[)peals  to  the  State,  the  courts  have  nothing 
to  do  with  it,  and  the  courts  must  follow  and 
abide  by  what  the  government  proper  does  upon 
that  subject — what,  in  the  language  of  the  Su- 
preme Court  of  the  United  States,  we  call  the 
political  branches  of  the  government  having 
charge  of  that  relation. 

But  a  treaty  may  be  the  foundation  of  a  private 
right,  and  then  it  becomes  a  subject  of  judicial 
action,  as  any  other  private  right  does.  An  in- 
stance occurred  in  the  Supreme  Court  within  the 
last  six  or  eight  weeks.  There  are  treaties  be- 
tween the  United  States  and  all  or  nearly  all 
European  governments  concerning  the  right  to 
inherit  land  by  aliens.     A  man  who  comes  from 


OF   THE    UNITED    STATES.  41 

a  European  country  here,  until  he  hecomes  nat- 
urahzed,  is  an  ahen.  He  may  hve  here  and  die 
here,  and  have  children  here,  bnt  he  is  an  alien. 
An  aUen  by  the  common  law,  by  the  prevalent 
law,  could  not  inherit  real  estate,  and  when  he 
died  it  could  not  go  to  his  children ;  his  father 
could  not  take  it,  he  beinsj  an  alien.  The  most 
of  the  States  of  the  Union  have  passed  laws  to 
remedy  that  evil,  but  some  of  those  laws  have 
been  imperfect,  and  many  have  passed  no  laws  at 
all.  But  the  United  States  Government  has  en- 
tered into  treaties  because  there  were  so  many 
aliens,  such  a  very  large  proportion  of  our  popu- 
lation are  emigrants  from  these  countries,  who 
come  here  and  do  business,  acquire  property, 
and  never  take  out  naturalization  papers;  and 
since  it  has  not  been  shown  that  Congress  has 
any  power  over  the  subject,  our  government 
has  entered  into  treaties  with  foreign  nations  by 
which  these  men  can  inherit  the  property  of  their 
fathers. 

jS^ow,  we  had  a  case  from  the  State  of  Virginia 
the  other  day,  in  which  the  law  of  Virginia  had 
failed  to  conform  itself  to  this  treaty.  The  proper 
authorities  of  the  State  of  Virginia  had  seized 
the  dead  man's  estate,  and  had  instituted  pro- 
ceedings in  the  nature  of  what  we  call  escheat. 


42  LECTURES    ON    THE   CONSTITUTION 

which  is  a  process  by  which  property  that  does 
not  belong  to  anybody  else  goes  to  the  govern- 
ment; and  in  their  proceedings  they  disregarded 
the  rights  of  this  man,  and  hjs  case  was  brought 
under  that  provision  of  the  Constitution  to  our 
court,  and  we  held  that  he  was  entitled  to  the 
property  by  virtue  of  the  treaty.  That  was  a 
case  arising  under  a  treaty  made  in  pursuance  of 
the  Constitution. 

Now  we  go  on  further.  It  shall  not  only  extend 
to  cases  arising  under  the  Constitution  and  the  laws 
of  the  United  States  and  treaties  made,  or  which 
shall  be  made,  under  its  authority,  but  the  text 
goes  on  and  assumes  another  form  of  expression. 
Heretofore  it  has  been  dealing  with  the  subject- 
matter  of  the  suit — with  the  nature  of  the  contro- 
versy going  on.  ]S'ow  it  uses  another  form 
of  expression ;  it  shall  extend  to  all  cases  af- 
fecting classes  of  people ;  "  ambassadors  and  other 
public  ministers  and  consuls,"  by  which,  you 
understand,  every  ambassador  from  a  foreign 
government  to  this  country,  or  if  he  be  not  of  the 
grade  of  an  ambassador;  if  he  be  a  minister — 
because  these  diplomatic  gentlemen  have  various 
grades,  very  high-sounding  grades  —  Ministers 
Plenipotentiary,  I  think,  some  of  them  are,  and  a 
few  of  them  have  the  title  of  Ministers  Plenipo- 


OF   THE    UNITED    STATES.  43 

tentiary  and  Envoy  Extraordinary ;  I  understand 
that  Ambassador  is  the  highest  oihce  of  any  of 
them ; — but  whether  they  be  ambassadors,  or  pub- 
lic ministers,  or  mere  consuls  at  our  various  ports, 
they  have  the  right  to  have  all  their  cases  tried  in 
the  Federal  courts — some  branch  of  them.  You 
understand  the  cause  of  that.  These  being  repre- 
sentatives of  foreign  governments,  hidependent 
nations,  are  not  to  be  subjected  to  the  powers  of 
the  States  who  have  no  relation  to  those  govern- 
ments, but  are  to  be  brought  before  the  courts 
of  the  Government  of  the  United  States,  who  can 
look  into  those  troubles  and  right  them. 

"To  all  cases  of  admiralty  and  maritime  juris- 
diction." That  is  a  very  peculiar  thing  to  be  in 
that  Constitution.  I  suppose  the  reason  it  was 
put  there  is,  that  while  admiralty  cases  do  not 
involve  any  law  or  statute  of  the  United  States, 
nor  the  Constitution  of  the  United  States,  nor  a 
treaty,  yet  at  the  time  this  Constitution  was  framed 
admii-alty  being  supposed  to  be  limited  (as  it  was 
in  ilngland)  to  traffic  on  the  ocean,  to  the  affairs 
of  vessels  and  seamen  and  navigators  of  the  ocean, 
it  was  in  the  nature  of  an  international  relation, 
and,  corning  inmiediately  in  juxtaposition  with  the 
clause  relating  to  ambassadors  and  ministers,  I 
have  no  doubt  that  was  the  reason  why  it  was 


44  LECTURES    ON   THE   CONSTITUTION 

taken  out  from  ordinary  cases  and  placed  with 
the  judicial  power  of  the  United  States.  That, 
however,  is  an  interpolation  in  that  clause  of  the 
suhject-matter  of  jurisdiction  instead  of  the  char- 
acter of  the  party. 

The  instrument  now  leaves  the  form  of  using 
the  word  "cases,"  and  it  leaves  the  reference 
to  the  suhject-matter  of  jurisdiction,  and  pro- 
ceeds again  to  the  person — to  give  jurisdiction 
by  the  description  of  persons  or  parties  w^ho  shall 
come  before  the  court;  and  instead  of  the  case, 
it  goes  on  to  say — you  will  supply  the  word  "  ex- 
tend"— "to  controversies  to  which  the  United 
States  shall  be  a  party."  Whenever  the  United 
States  is  a  party  in  a  suit  the  Federal  courts  may 
have  jurisdiction — that  is,  courts  acting  under  the 
Federal  power,  in  which  alone  the  United  States 
can  be  sued,  and  which  are  courts  established 
under  the  authority  of  the  United  States.  Suits 
in  which  the  United  States  may  sue  to  recover 
property  and  taxes;  suits  on  bonds  against  de- 
faulting officers;  prosecutions  for  crimes  against 
the  United  States, — all  these  are  cases  in  which 
the  United  States  is  a  party,  and  in  which  she 
sues  in  the  courts  of  her  own  creation. 

"  Controversies  between  two  or  more  States." 
There  never  was  any  tribunal  but  one  in  the 


OF   THE    UNITED    STATES.  45 

history  of  time,  anterior  to  this  Constitution, 
which  had  jurisdiction,  in  the  full  sense  of  the 
word,  of  controversies  between  States.  The  old 
Olympic  Council,  among  the  Greeks  might  pos- 
sibly have  been  called  a  court  or  tribunal  in  some 
sense,  but  certainly  in  no  such  sense  as  the  Su- 
preme Court  of  the  ITnited  States  is  a  court. 
They  could  meet  and  hear  complaints  of  the 
Greek  States  against  each  other.  Athens  and 
Sparta  and  Corinth  could  meet  before  that  coun- 
cil and  complain  of  each  other's  acts,  and  the 
council  could  recommend  what  should  be  done, 
but  they  had  no  power  to  give  it  any  effect.  The 
Constitution  of  the  United  States  creates,  as  I 
shall  proceed  to  show  in  another  clause,  a  court 
with  jurisdiction  of  controversies  between  States, 
which  can  bring  these  States  by  process  before  it 
as  it  can  bring  the  humblest  citizen  of  the  United 
States,  and  which  can  declare  its  judgment,  and 
which  has  usually  been  able  to  enforce  its  judg- 
ment. 

"  Controversies  between  a  State  and  the  citi- 
zens of  another  State."  That  is  to  say,  while  a 
State  cannot  sue  one  of  its  own  citizens  in  the 
courts  of  the  United  States,  it  can  sue  the  citizens 
of  other  States  in  those  courts.  As  this  Con- 
stitution stood  at  the  time  ^vhgu^wjifl-4iclopted, 

//      ^  OF  T1]E         ^r    \ 

|UNI7ERSITY» 


46  LECTURES    ON    THE    CONSTITUTION 

a  citizen  of  one  State  could  sue  another  State  in 
the  courts  of  the  United  States;  but  as  soon  as  a 
case  of  that  kind  originated,  in  which  a  State 
found  its  dignity  infringed,  and  that  a  State  could 
be  brought  into  tlie  court  by  everybody,  the  requi- 
site number  of  States  modified  that  provision  of 
the  Constitution  by  declaring  that-  it  should  not 
apply  to  suits  by  citizens  of  one  State  against 
another  State.  The  jurisdiction  is  between. States, 
and  between  a  State  and  citizens  of  other  States 
when  the  State  is  plaintiff. 

"Controversies  between  citizens  of  different 
States."  And  here  is  the  largest  source,  as  it 
turns  out,  of  the  jurisdiction  of  the  Federal  courts. 
You  will  understand  that  while  the  previous  part 
of  this  section  granting  parties  a  right  to  sue  in 
the  Federal  courts,  in  any  action  arising  under 
the  Constitution  and  laws  and  treaties  of  the 
United  States,  without  regard  to  their  citizenship 
or  residence,  these  cases  are  those  in  which  the 
character  of  the  party  gives  the  right  to  sue  with- 
out reference  to  the  nature  of  the  matter  at  issue. 
And  we  have  here  a  class  of  persons  who  can  bring 
suits  no  matter  what  is  the  cause  of  action.  On 
-a  promissory  note,  or  assault  and  battery,  or  any 
other  matter  which  can  become  the  subject  of  a 
judicial  investigation,  this  class  of  persons  can 


OF   THE    UNITED    STATES.  47 

bring  the  suits  in  the  United  States  courts;  and 
the  largest  source  of  jurisdiction  up  to  the  pres- 
ent hour  has  been  from  suits  between  citizens  of 
different  States.  A  person  living  in  Maryland 
can  sue  in  the  United  States  courts  a  person  liv- 
ing in  Virginia,  and  e  converso  ;  and  so  of  other 
States.  If  you  have  the  qualification  of  citizen- 
ship in  one  State,  and  your  adversary  has  it  in 
another  State,  the  suit  can  be  brought  in  the  Fed- 
eral courts.  The  reason  for  this,  as  has  been  fre- 
quently said  by  commentators  and  by  courts,  was 
the  fear  in  the  minds  of  the  makers  of  the  Con- 
stitution, that  the  local  prejudice  in  favor  of  a 
man  who  is  sued  in  the  courts  of  his  own  State 
would  result  in  unfair,  decisions  against  his  non- 
resident adversary.  As  an  illustration,  one  is 
living  in  Boston,  and  has  a  suit  against  a  man 
living  in  New  Orleans.  It  was  supposed  that 
the  popularity,  the  home  influence,  of  the  man 
sued  in  New  Orleans,  and  possibly  some  irritation 
and  ill-feeling  against  citizens  of  another  State, 
would  stand  in  the  way  of  his  getting  justice. 
So,  also,  seeing  that  the  legislature  liad  provided 
that  the  man  so  sued  for  an  amount  as  much  as 
twenty  dollars  might  demand  a  trial  by  jury,' 
that  the  jury  might  be  afl:ected  by  this  class  of 
prejudices,  it  was  thought  wise  that  a  tribunal 


48  LECTURES    ON    THE    CONSTITUTION 

which  was  supposed  to  be  impartial  should  be 
provided,  and  which  did  not  owe  its  appointment 
or  compensation  to  the  State  in  which  the  case 
was  tried.  A  court  owing  its  own  allegiance  and 
receiving  its  commission  from  the  United  States, 
would  be  a  safer  tribunal  than  a  court  which  re- 
ceived its  conmiission  at  the  hands  of  a  State, 
which  could  be  influenced  by  the  vote  of  a  ma- 
jority of  the  citizens,  and  swayed  more  or  less  in 
its  decisions  from  the  absolute  principles  of  jus- 
tice. It  is  on  this  account  that  this  provision  was 
placed  in  the  Constitution;  and  it  has  been,  and 
is  to  this  day,  in  the  ratio  of  four  to  one,  the  source 
of  controversies,  suits,  and  cases  in  the  courts  of 
the  United  States. 

Now  we  come  again  in  this  intermingling  to  a 
class  of  cases  that  depend  upon  questions  partly 
of  citizenship  and  partly  of  a  particular  issue 
'^  between  citizens  of  the  same  State  claiming 

o 

lands  under  grants  of  different  States."  At  the 
time  this  Constitution  was  framed,  Virginia  claim- 
ed, I  believe — or  had  claimed — a  large  part  of  the 
great  Northwestern  Territory ;  certainly  there  was 
a  very  large  amount  of  land  which  was  claimed 
under  the  authority  of  the  original  State  of  Vir- 
ginia. Connecticut  had  a  grant  which  is  now  in  the 
State  of  Ohio.     What  is  called  now  the  Western 


OF   THE    UNITED    STATES.  49 

Keserve,  witli  a  pO[)ulatioij  of  a  quarter  of  a  mil- 
lion, was,  I)y  the  grant  under  it,  held  from  the 
State  of  Connecticut.  It  was  supposed,  wliere 
there  was  this  evil  of  grants  under  the  difierent 
States,  there  would  be  controversies,  and  this 
was  a  provision  giving  the  Federal  courts  juris- 
diction of  that  class  of  cases.  And  linally,  con- 
troversies "between  a  State  or  the  citizens 
thereof  and  foreign  States,  citizens,  or  subjects." 
Every  foreign  State  is  entitled  to  sue  in  the  Fed- 
eral courts  any  of  our  citizens ;  and  if  we  can  get 
hold  of  anything  they  have,  we  have  a  right  to 
sue  them  in  the  Federal  courts. 

These  are  the  chisses  of  cases  and  the  nature 
of  the  controversies  and  the  characteristics  of  the 
parties  who,  by  the  fundamental  law  of  this  land, 
are  authorized  to  bring  suits  in  the  courts  of  the 
United  States.  But  in  the  largest  part  of  them 
there  is  requii'ed  an  act  of  Congress  to  create  the 
courts  which  should  exercise  this  jurisdiction. 
Congress,  immediately  after  the  organization  of 
the  government,  did  create  courts,  but  up  to  the 
present  time — certainly  up  to  withiu  live  years 
ago — a  very  large  body  of  this  judicial  power  was 
vested  in  no  court  at  all,  and  therefore  could  not 
be  exercised  in  a  court  of  the  United  States;  and 
at  the  present  hour  there  is  a  very  large  limita- 
3 


50  LECTURES    ON    THE   CONSTITUTION 

tion  upon  the  class  of  cases  the  power  in  regard 
to  which  has  been  vested  by  acts  of  Congress. 
For  instance,  no  suit  can  be  brought  in  the  courts 
of  the  United  States  where  the  amount  in  con- 
troversy does  not  exceed  iive  hundred  dollars  in 
value,  with  the  exception  of  criminal  cases,  pat- 
ent cases,  and  revenue  cases,  in  which  the  United 
States  is  concerned,  where  the  United  States  may 
bring  suit  without  reference  to  the  value.  But  a 
citizen  of  the  United  States  cannot  bring  a  suit 
in  a  court  of  the  United  States,  unless  it  be  a 
patent  case,  an  admiralty  case,  or  where  the  value 
in  controversy  exceeds  live  hundred  dollars.  I 
understand  there  is  a  bill  before  Congress  to  ex- 
tend the  rule  of  exclusion  still  further,  by  making 
the  amount  two  thousand  dollars;  and  it  was 
only  in  1875  that  they  passed  a  law  which  author- 
ized the  bringing  in  the  Federal  courts  of  all 
cases  arising  under  the  Constitution,  the  laws,  and 
treaties  made  under  their  authority.  Previous  to 
1875,  if  the  party  had  a  right,  under  the  Consti- 
tution, the  laws,  or  treaties,  but  had  not  the  requi- 
site citizenship,  he  had  to  go  before  the  State 
court;  and  when  he  had  carried  his  case  through 
all  the  State  courts,  up  to  the  highest,  then,  by  a 
writ  of  error,  the  question  which  concerned  the 
Federal  jurisdiction    might   be  brought  to  the 


OF    THE    UNITED    STATES.  51 

Supreme  Court  of  the  United  States,  if  decided 
afijainst  him.  But  now,  by  the  act  of  1875,  that 
class  of  cases,  of  live  hundred  dollars  in  value, 
may  be  brought  originally  in  the  Circuit  Courts 
of  the  United  States. 

I  have  read  to  you  and  commented  mainly  on 
the  second  section  in  advance  of  the  first  section, 
because  this  is  the  section  which  defines  the  judi- 
cial power  of  the  United  States,  which  tells  us 
the  classes  of  cases  that  it  may  extend  to,  and 
which,  therefore,  is  of  primary  importance  to  the 
student  of  law. 

The  first  section — which,  perhaps,  in  the  order 
of  sequence,  might  have  been  first  read  —  pro- 
vides that  "the  judicial  power  of  the  United 
States" — this  power  of  which  we  have  been  talk- 
ing—  "shall  be  vested  in  one  Supreme  Court, 
and  in  such  inferior  courts  as  the  Congress  may 
from  time  to  time  ordain  and  establish.  The 
judges,  both  of  the  supreme  and  inferior  courts, 
shall  hold  their  offices  during  good  behavior,  and 
shall,  at  stated  times,  receive  for  their  services  a 
compensation,  which  shall  not  be  diminished  dur- 
ing their  continuance  in  office." 

"The  judicial  power  shall  be  vested  in  one 
Supreme  Court."  There  can  be,  therefore,  but 
one  Supreme  Court,     That  court,  once  in  exist- 


52  LECTURES    ON    THE   CO^^STITUTION 

ence,  cannot  be  abolished,  because  its  tbandation 
is  not  in  an  act  of  Congress,  bat  in  the  Constitu- 
tion of  the  United  States.  It  is  true,  an  act  of 
Congress  was  necessary  to  define  the  number  of 
these  judges,  to  some  extent  to  limit  their  juris- 
diction, as  I  shall  presently  show,  and  to  provide 
for  their  compensation ;  but  that  thing  once  done, 
you  find  that  the  judges  shall  hold  office  during 
good  behaA'ior.  They  cannot  be  legislated  out 
of  office;  they  "shall,  at  stated  times,  receive 
for  their  services  a  compensation,  which  shall  not 
be  diminished  during  their  continuance  in  office." 
When  they  once  have  established  the  compen- 
sation of  judges,  they  cannot  diminish  that  com- 
pensation during  the  term  of  the  judge  then  in 
office.  You  can  see  an  obvious  reason  for  that. 
As  I  told  you  the  other  evening,  the  judicial 
branch  of  the  government  is  the  weakest  branch. 
It  has  neither  the  purse  nor  the  sword.  It  is 
dependent  upon  annual  appropriations  for  the 
bread  on  which  its  judges  live.  The  courts  are 
dependent  upon  the  President's  furnishing  mar- 
shals who  shall  execute  their  decrees;  and  the 
makers  of  this  wonderful  instrument,  perfectly 
aware  of  the  waves  of  passion  wliicb  frequently 
run  through  the  legislative  and  executive  branches 
of  the  government,  and  that  this  judicial  body 


OF   THE    UNITED    STATES.  53 

would  be  called  upon  occasiouallv  to  declare 
what  the  Coustitiition  means,  and  that  what  Con- 
gress had  said  were  laws  were  not  constitutional, 
and  that  might  provoke  hostility,  they  said :  **You 
cannot  diminish  these  gentlemen's  salaries  he- 
cause  they  do  not  agree  with  you."  And  they 
said  more  than  that  to  the  President:  "You  shall 
not  turn  them  out  of  office;  they  shall  remain  as 
long  as  they  shall  live,  provided  they  behave 
themselves."  Well,  I  do  not  know  how  well 
they  have  behaved;  but  the  only  mode  of  deter- 
mining that  thing  is  by  impeachment.  One  judge 
of  the  Supreme  (>ourt  of  the  United  States  went 
through  the  process  of  impeachment  and  came 
out  unhurt. 

So  that  this  judicial  body,  these  men, — [  am 
not  s[)eaking  alone  of  the  Supreme  Court,  but  of 
all  the  Federal  courts, —  have  this  protection. 
And  speaking  of  this  Supreme  Court,  I  will  call 
your  attention  again  to  the  fact  that  this  power 
is  vested  in  one  Supreme  Court  and  such  inferior 
courts  as  the  Congress  may  from  time  to  time 
ordain  and  establish.  The  Constitution  does  not 
admit  that  it  should  be  abolished  or  the  judges 
legislated  out  of  existence.  It  lias  been  argued 
very  forcibly,  probably  with  truth,  that  all  the 
other  courts  can,  by  legislative  act,  be  abolished, 


54  •     LECTURES    ON    THE    CONSTITUTION 

and  their  powers  conferred  on  other  courts,  sub- 
divided in  different  modes. 

It  is  declared  in  one  of  the  clauses  which  I 
have  read  to  you — the  second  clause  of  the  sec- 
ond  section — that  in  all  cases  aifecting  ambassa- 
dors, other  public  ministers,  and  consuls,  and  those 
in  which  a  State  shall  be  a  party,  the  Supreme 
Court  shall  have  original  jurisdiction  ;  that  is  to 
say,  that  there  is  a  class  of  cases  where  you  need 
not  go  through  the  forms  of  the  lower  courts,  the 
Circuit  Courts,  District  Courts,  or  anything  else; 
for  if  a  man  is  an  ambassador,  or  a  minister,  or  a 
consul,  or  if  a  State  is  a  party, — as  the  Constitu- 
tion as  amended  has  it,  if  a  State  is  a  party  against 
anothei-  State,  or  if  a  State  clioose  to  bring  a  suit 
against  the  citizens  of  another  State, — that  suit 
can  be  brought  at  once  in  the  Supreme  Court  in 
its  original  jurisdiction,  the  word  "original"  be- 
ing used  in  contradistinction  to  appellate  jurisdic- 
tion. 

This  class  of  persons,  then,  is  limited,  and  the 
number  of  suits  in  the  original  jurisdiction  of  the 
Supreme  Court  is  very  small.  It  never  amounts 
to  more  than  eight  or  ten  cases  at  a  time.  In 
all  other  cases  before  mentioned — that  is,  in  all 
that  large  mass  of  cases  to  which  the  power  of  the 
Federal    government    extends  —  "the   Supreme 


OF   THE    UNITED    STATES.  55 

Court  shall  have  appellate  jurisdiction  both  as  to 
law  and  fact,  with  such  exceptions  and  under 
such  regulations  as  the  Congress  shall  make." 
The  Congress,  therefore,  can  control  very  largely 
the  appellate  jurisdiction  of  the  United  States 
Supreme  Court.  It  has  done  so;  it  has  passed 
laws  at  various  times  regulating  that  jurisdiction. 
One  of  its  earliest  laws  upon  the  subject  was  that 
110  ordinary  suit  between  individuals  could  come 
to  the  Supreme  Court  for  revision  unless  there 
were  two  thousand  dollars  involved;  it  is  now 
five  thousand  dollars;  and  there  is  a  pressure 
now,  either  by  the  creation  of  some  intermediate 
appellate  court  or  otherwise,  to  enlarge  that  sum 
to  ten  or  twenty  thousand  dollars,  so  that  only 
cases  involving  great  amounts,  and  certain  other 
cases  of  the  class  tirst  mentioned,  where  the  Con- 
stitution of  the  United  States  is  involved,  or  where 
a  conflict  between  State  and  Federal  authority  is 
involved,  may  go  up  to  the  Supreme  Court  of 
the  United  States. 

You  see,  therefore,  gentlemen,  that  after  hav- 
ing prescribed,  with  wonderful  particulai'ity,  the 
classes  and  kinds  of  suits  which  may  be  brought 
before  it,  the  Constitution  has  created  a  judicial 
department  of  this  government  as  one  of  its  three 
branches,  and  to  that  exclusively  is  delegated  the 


66  LECTURES    ON   THE   CONSTITUTION 

judicial  power  of  the  government.  The  lines 
which  mark  legislative  and  judicial  power  are 
not  ver}^  w^ell  defined,  but  they  are  becoming 
more  and  more  so.  Our  courts  are  full  of  de- 
cisions on  that  subject.  It  is  judicial  power 
which,  in  a  controversy,  decides  the  rights  to 
property  between  citizens.  It  is  not  a  legislative 
power ;  and  when  a  legislature,  or  at  least  the 
legislature  of  this  Federal  government,  shall  de- 
clare that  the  property  which  was,  or  is,  the 
property  of  A,  sliall  become  the  property  of  B, 
it  is  an  invasion  of  the  judicial  function  ;  and  the 
court  would  not  hesitate  to  say  that  that  was  an 
act  which  belongs  to  the  courts  alone ;  that  the 
legislature  cannot  do  it,  because  of  this  separa- 
tion in  the  Constitution  of  judicial  and  legislative 
powers.  So  the  executive  may,  under  certain 
circumstances,  invade  the  personal  rights  of  the 
individual,  as  regards  his  liberty.  It  has  been 
done  in  cases  of  emergency;  it  may  be  done 
again  ;  because  the  writ  of  habeas  corpus  may  be 
suspended,  and  the  President  or  the  executive 
officers  may  order  a  man  into  imprisonment. 
But  in  all  these  cases  they  are  to  be  careful  to 
exercise  their  power  within  the  law.  Whenever 
they  do  this  arbitrarily,  by  creating  a  law  for 
themselves  in  violation  of  the  restrictions  which 


OF   THE   UNITED    STATES. 


57 


botli  the  Constitution  and  the  laws  have  thrown 
around  private  rights,  they  invade  the  judicial 
functions  and  power  of  the  United  States,  and 
the  courts  will  set  that  man  at  liberty  if  their 
mandates  are  observed. 


^^ 


LI 


u 


\^^       OF  TUK 

TERSITY 


58  LECTURES    ON    THE    CONSTITUTION 


Third  Lecture. 


In  these  three  addresses,  gentlemen,  that  I 
have  undertaken  to  deliver  to  you  on  the  Con- 
stitution of  the  United  States,  it  is  impossible  to 
do  more  than  take  up  in  a  fragmentary  way  par- 
ticular parts  of  it.  The  instrument  itself  is  so 
all-embracing;  there  are  so  many  sections,  sub- 
divisions, sentences,  and  clauses,  each  of  which 
has  been  the  subject  of  judicial  construction,  and 
comment  by  the  public  press  and  in  both  houses 
of  Congress,  that  it  is  impossible  to  do  more 
in  this  way  than  to  take  up  some  particular  sub- 
jects and  speak  to  you  about  them. 

This  evening  I  propose  to  turn  your  attention, 
rather  than  deliver  any  formal  lecture,  to  the  pro- 
visions of  that  instrument  which  ma}^  be  said  to 
relate  to  the  protection  of  personal  rights.  It  is  not 
a  new  feature  in  any  instrument  which  professes 
to  be  a  fundamental  basis  of  government,  although 
our  Constitution,  of  which  we  are  talking,  was  one 
of  the  earliest  that  attempted  to  institute  de  novo 
a  systeniatic  form  of  organic  government,      In 


OF   THE    UNITED    STATES.  59 

the  history  of  the  English  race,  at  all  events,  prior 
to  that  time,  were  charters,  concessions  from  the 
Crown,  guaranteeing  rights  to  the  citizens;  and 
perhaps  that  was  the  only  possible  mode  in  which 
our  ancestors  could  establish  on  a  broader  basis 
their  liberties,  namely,  by  demanding  from  the 
monarchs  of  the  English  race  concessions,  char- 
ters, grants,  and  privileges.  The  great  Magna 
Charta,  about  which  you  have  heard  so  much,  as 
probably  the  most  famous  paper  in  English  his- 
tory, were  concessions  exacted  from  King  John, 
who  was  of  a  rather  arbitrary  disposition.  This 
was  mainly  for  the  purpose  of  establishing  the 
personal  rights  of  his  subjects. 

Our  Constitution,  unlike  most  modern  ones, 
does  not  contain  any  formal  declaration  or  bill 
of  rights.  It  has  become  the  custom,  and  you 
will  iind  inserted  in  most  of  the  constitutions  of 
the  States  what  is  called  a  bill  of  rights,  intended 
to  define  and  protect  the  personal  rights  of  the 
citizens,  or  of  the  people  who  are  subjected  to 
the  power  of  the  government ;  and  although  there 
is  no  such  formal  list  in  this  Constitution,  there 
is  scattered  through  it,  in  very  irregular  shape 
and  at  different  places,  some  fundamental  dec- 
larations of  the  right  of  the  citizen  for  protection 
even  against  his  own  government,  and  against 


60  LECTURES    ON    THE    CONSTITUTION 

the  government  which  they  were  then  organiz- 
ing; to  which  I  propose  calling  your  attention 
this  evening.  For  the  very  reason  that  they 
were  scattered  in  that  irregular  manner,  it  is  use- 
ful to  have  them  brought  before  you  in  a  shape 
that  they  may  be  looked  at  with  some  system. 

The  iirst  of  these  to  which  I  propose  to  call 
your  attention,  is  that  which  relates  to  religion. 
The  provisions  on  that  subject  are  only  two,  and 
they  do  not  go  anything  like  as  far  as  the  popu- 
lar idea  supposes  they  do.  What  is  said  any- 
where in  this  Constitution  on  the  subject  of  relig- 
ion is  very  limited.  The  first  clause  that  you  find 
upon  that  matter  is  at  the  close  of  the  sixth  arti- 
cle of  the  Constitution,  and  very  near  the  close 
of  the  instrument — a  very  queer  place,  you  would 
think,  to  find  an  article  of  that  kind.  It  relates 
to  the  oath  which  the  officers  of  the  government 
shall  take.  It  is  the  third  clause  of  the  sixth 
article : ' 

"The  Senators  and  Representatives  before  mentioned, 
and  the  members  of  tlie  several  State  legislatures,  and  all 
exeQUtive  and  judicial  officers,  both  of  tlie  United  States 
and  of  the  several  States,  sliall  be  bound  by  oath  or  affir- 
mation to  support  tiiis  Constitution  ;  but  no  religious  test 
shall  ever  be  requii-ed  as  a  qualilication  to  any  office  or 
public  trust  under  the  United  States." 

Now,  3'ou  may  imagine,  with  your  personal 


OF    THE    UNITED    STATES.  61 

experience  and  mine,  that  that  was  a  very  un- 
necessary provision  in  a  Constitution  intended  for 
this  country.  But  you  are  to  remember,  at  the 
time  that  Constitution  was  framed,  that  very  re- 
cently, every  man  in  New  England  who  held 
office  had,  in  some  way,  either  by  an  oath  or  in 
some  form  which  tested  his  sincerity,  to  profess 
to  belong  to  the  Protestant  religion,  and  some 
particular  form  of  the  Protestant  religion.  In 
England  at  that  time  no  man  could  hold  office 
who  did  not  profess  his  belief  in  the  thirty-nine 
articles  of  the  English  Church.  And  it  was  only 
in  very  modern  times — I  think  about  1840 — that 
Roman  Catholics  were  permitted  to  hold  office, 
and  only  in  the  last  fifteen  years  that  Jews  were 
permitted  to  hold  office  in  Great  Britain.  So 
you  see  that  this  was  no  imaginary  thing,  but  a 
necessary  and  proper  declaration  to  be  made  at 
that  time,  that  under  no  circumstances  should 
any  religious  test  be  required  as  a  qualification 
for  any  public  office  in  the  Government  of  the 
United  States.     It  was  an  advance. 

That  is  all  that  is  in  the  old  Constitution  as  it 
was  originally  framed;  but,  as  I  told  3'ou  the 
other  evening,  in  the  conventions  of  the  States 
which  voted  upon  the  ratification  of  that  Consti- 
tution, there  was  a  very  general  distrust  of  the 


62  LECTURES    ON   THE    CONSTITUTION 

powers  which  that  instrument  conferred  as  tend- 
ing to  centralization,  and  a  great  many  States 
proposed  amendments  in  those  conventions, 
which  were  submitted  at  the  first  session  of 
Congress  after  that  body  was  organized,  and 
adopted  according  to  the  rule  which  required 
two-thirds  of  the  States  to  adopt  amendments. 
There  were  then  submitted  to  the  vote  of  the 
States  some  fifteen  amendments,  of  which  twelve 
were  adopted.  The  first  of  these  amendments 
had  reference  to  this  subject.  Still  suspicious  of 
the  power  of  the  general  government,  nearly  all 
of  the  amendments  submitted  at  that  session  of 
Congress  were  adopted  with  reference  to  the  re- 
straint upon  the  powers  of  the  Federal  govern- 
ment.    The  article  is  as  follows  : 

"Congress  shall  make  no  law  respecting  an  establish- 
ment of  religion  or  prohibiting  the  free  exercise  thereof, 
or  abriclgiiig  the  freedom  of  speech  or  of  the  press,  or  the 
right  of  the  people  peacefully  to  assemble,  and  to  petition 
the  government  for  redress  of  grievances." 

"  Congress  shall  make  no  law  respecting  the 
establishment  of  religion,"  and  the  other  provis- 
ion requires  that  there  shall  be  no  religious  test 
required  for  officers  under  the  United  States 
Government.  But  there  is  in  this  instrument 
no  limitation  in  regard  to  the  State.9  establishing 


OF   THE    UNITED    STATES.  6S 

any  formal  religion,  or  against  requiring  any  re- 
ligions test  in  the  officers  of  the  States.  The 
whole  restriction  is  upon  the  Federal  govern- 
ment; and,  so  far  as  this  instrument  is  con- 
cerned to-day,  contrary  to  the  general  impres- 
sion, any  State  can  establish  Methodism,  or 
Episcopalianism,  or  Unitarian  ism,  or  Universal- 
ism,  as  the  religion  of  the  State,  to  be  supported 
by  taxes  to  be  levied  upon  the  property  of  the 
people.  I  speak  of  this  because  it  is  a  general 
opinion  that  no  such  thing  could  be  done  under 
the  Constitution  of  the  United  States.  There  is 
no  prohibition  on  that  subject. 

The  next  thhig  that  I  call  your  attention  to  is 
the  writ  of  habeas  corpus.  Ever  since  the  charter 
of  King  John,  the  writ  of  liabeas  corpus  has  been 
considered  as  the  representative  of  the  English- 
man's right  to  the  security  of  his  personal  liberty 
against  the  private  seizure  of  his  wife  or  children, 
and  for  any  unlawful  imprisonment  whatever. 
The  writ  of  habeas  corpus,  so  established,  was  then 
and  is  now,  and  perhaps  will  always  remain,  the 
representative  of  liberty  and  the  established  form 
of  maintaining  that  liberty.  It  comes  from  two 
Latin  words :  habeas,  "  have  "  or  "  take,"  and  cor- 
pus, "the  body";  and  it  is  used  in  that  way  be- 
cause the  writ  commences:  "You  will  have  the 


64  LECTURES    ON   THE   CONSTITUTION 

body  of  the  prisoner  before  the  court"  which 
issues  it.  The  writ  of  habeas  corpus  was  then  in 
existence,  and,  in  the  constitutional  provision  on 
the  subject,  it  is  recognized  as  an  existing  reme- 
dy. It  is  not  established  by  the  Constitution ;  it 
is  not  created  by  the  instrument ;  it  is  only  spoken 
of,  like  so  many  other  things  in  this  instrument, 
as  a  known  and  existing  institution;  and  it  is 
for  the  protection  and  security  of  the  citizen  in 
the  use  of  that  writ  that  the  provision  on  the 
subject  is  found  in  this  Constitution.  It  is  the 
second  clause  of  section  nine  of  the  first  article 
of  the  Constitution.  After  prescribing  the  pow- 
ers which  Congress  shall  have,  and  some  pro- 
visions about  the  "migration  or  importation" 
of  persons, — using  that  particular,  formal  phrase 
wdiich  the  instrument  so  often  does  to  avoid  the 
word  "slaves":  "the  migration  or  importation 
of  such  persons  as  any  of  the  States  now  existing 
shall  think  proper  to  admit,  shall  not  be  prohibited 
by  the  Congress  prior  to  the  year  1808;  but  a 
tax  or  duty  ma}^  be  imposed  on  such  importation," 
— then  the  phrase  to  which  I  call  your  attention 
follows : 

"The  privileo^e  of  the  writ  of  haheas  corjms  shall  not  be 
suspended,  unless  when,  in  cases  of  rebellion  or  invasion, 
the  public  safety  may  require  it." 


OF    THE    UNITED    STATES.  65 

That  is,  it  shall  always  be  an  existing  remedy. 
No  local  authority  shall  suspend  it;  it  shall  not 
be  denied  for  any  ordinary  cause;  it  shall  be  a 
remedy  to  which  the  poorest  citizen  may  resort 
whenever  he  is  imprisoned  or  detained  forcibly, 
with  the  single  exception  of  cases  of  rebellion  or 
invasion,  and  even  then  only  when  the  public 
safety  requires  it. 

A  very  important  question  arose  about  who 
can  suspend  that  writ — a  question  that  has  never 
been  settled  yet — which  may  yet  come  to  be  set- 
tled judicially.  The  President  undertook  to  sus- 
pend it  by  proclamation,  and  that  proclamation 
was  acted  on,  and  a  great  many  people  were  im- 
prisoned without  relief.  Habeas  corpus  was  de- 
nied by  a  great  many  courts  judicially,  afterwards, 
on  the  ground  that  the  President  had  suspended 
the  writ,  but  there  was  a  large  class  of  jurists 
and  statesmen  who  held  that  Congress  only  could 
suspend  it.  I  do  not  propose  to  enter  into  that 
question.  I  can  only  say  that  President  Lincoln 
thought  expedient  to  suspend  it,  and  undoubtedly 
circumstances  rendered  its  suspension  necessary 
at  that  time.  But  that  great  writ,  which  was  in- 
tended for  the  protection  of  the  citizen,  shall  not 
be  suspended,  which  means  shall  not  be  denied. 


66  LECTURES    ON   THE   CONSTITUTION 

except  in  cases  of  rebellion  or  invasion,  and  when 
the  public  safety  requires  it. 

The  original  Constitution  contains  some  other 
matters  of  this  same  class,  to  which  I  will  direct 
your  attention  a  few  moments.  Among  them  is 
the  section  with  regard  to  bills  of  attainder.  That 
is  to  be  found  in  section  ten  of  the  first  article  of 
the  Constitution,  just  after  the  one  I  have  been 
speaking  of: 

"No  bill  of  attainder  or  ex  post  facto  law  shall  be 
passed." 

That,  of  course,  is  a  limitation  upon  the  power 
of  Congress.     But  section  ten  says  : 

'•No  State  shall  *  *  *  *  passany  bill  of  attainder. 
ex  post  facto  law,  or  law  iinpairino-  the  obligation  of  con- 
tracts." 

You  see  that  the  makers  of  the  Constitution 
not  only  declared  that  Congress  should  not  pass 
any  bill  of  attainder,  but  they  went  further,  and 
said  that  no  State  should  do  so;  and  the  same  is 
true  with  regard  to  ex  post  facto  laws. 

These  two  things,  bills  of  attainder  and  ex  post 
facto  laws,  are,  happily,  unknown  in  this  country. 
The  provisions  of  the  Constitution  forbade  them 
both  to  the  States  and  to  the  Federal  govern- 
ment ninety  years  ago,  and  we  do  not  know  any- 
thing about  them  in  this  age  and  generation.     A 


OF    THE    UNITED    STATES.  67 

bill  of  attainder  was  a  familiar  mode  in  the 
English  Parliament  of  punishing  a  man  by  an 
.|M3t  of  Parliament  without  a  formal  judicial  trial, 
without  a  jury,  without  witnesses  to  be  examined, 
if  he  had  offended  the  sovereign  power  of  the 
country. 

In  the  frequent  rebellions  and  revolutions  that 
they  had  in  that  country,  the  party  which,  for  the 
time  being,  became  dominant  punished  its  ene- 
mies by  bills  of  attainder;  and  a  bill  of  attainder 
was  a  law  which  declared  that  the  man  or  men 
against  whom  the  act  was  passed  had  forfeited 
all  their  rights  of  property;  often  it  declared  that 
they  had  forfeited  their  lives,  and  that  the  blood 
of  that  man  and  his  family  was  attainted  ;  so  that 
neither  could  he  inherit  anything  from  his  ances- 
tors, nor  his  children  inherit  anything  from  him. 
And  that  is  the  origin  of  the  word  attainder,  from 
the  old  Norman -French  word  attebulre.  A  bill 
of  attainder  attainted  his  blood,  so  that  if  he  es- 
caped with  his  life,  and  his  father  was  a  noble- 
man, or  only  a  gentleman  inheriting  large  real 
estate,  this  man  could  not  inherit;  and  if  he  had 
children  who  were  innocent,  who  had  taken  no 
part  in  the  rebellion  or  quarrel  which  was  the 
cause  of  it,  those  children  could  not  inherit  from 
him.     He  is  cut  off  and  blasted  in  his  root  and 


68  LECTURES    ON   THE   CONSTITUTION 

branch,  so  that  title  to  no  property  coiikl  go 
through  him.  And  tliat  was  called  a  hill  of 
attainder.  That  was  the  common  mode  of  piiriin, 
ishing  treason,  and  also  some  other  crimes.  It 
was  a  frequent  addition  to  the  judicial  punish- 
ment of  enormous  crimes,  such  as  fratricide,  that 
the  man  should  not  only  be  punished  bj  death, 
but  that  he  should  be  attainted. 

So  with  regard  to  ex  post  facto  laws :  they  were 
laws  of  a  similar  character.  It  was  a  question 
in  our  Supreme  Court  whether  the  expression 
ex  post  fticto  laws  did  not  relate  to  all  laws  passed 
after  the  fact  on  which  they  were  intended  to 
operate;  but  the  Supreme  Court,  at  a  very  early 
day,  held  that  it  was  a  form  of  expression  appli- 
cable solely  to  criminal  proceedings,  and  that  a 
law  which  affected  only  civil  rights  might  be  re- 
troactive or  retrospective  in  its  effects;  but  that 
no  statute  which  attempted  to  regulate  criminal 
proceedings  could  be  passed  which  made  that 
which  was  not  an  offense  at  law  a  criminal  offense 
afterwards.  Xo  law  could  be  passed  after  a  man 
had  committed  the  act  for  which  he  was  to  be 
indicted  or  charged  which  should  seriously  affect 
the  rule  by  which  his  guilt  was  to  be  determined ; 
no  new  description  of  offenses  which  would  in- 
clude an  act  already  done  if  it  were  not  included 


OF   THE    UNITED    STATES.  69 

before;  no  new  evidence  which  could  not  have 
been  given  at  the  time  the  act  was  committed 
can,  b}'  a  new  law,  be  introduced  to  affect  a  crim- 
inal proceeding.  A  great  many  cases  have  been 
before  the  court  upon  this  point,  and  it  is  very 
well  defined  and  understood;  and  the  substance 
and  essence  of  it  is  that  no  act  can  be  passed, 
either  by  Congi'ess  or  a  State  legislature,  which, 
in  its  retroactive  effect  on  a  crime,  or  in  its  effect 
on  an  act  committed  before  the  law  was  passed, 
can  make  that  criminal  which  was  not  criminal 
before,  or  make  that  punishable  which  was  not 
punishable  before,  or  in  a  more  severe  manner 
than  it  was  punishable  before,  or  make  it  to  be 
ascertained  by  other  and  different  rules  of  evi- 
dence than  those  which  existed  at  the  time  it  was 
committed. 

These,  as  you  will  perceive,  gentlemen,  all  be- 
long to  a  class  of  provisions  intended  to  secure 
the  personal  rights  of  the  individual  citizen. 

Passing,  now,  from  the  original  instrument  to 
the  amendments  of  which  I  have  already'  spoken, 
and  the  first  one  of  which  I  have  read  to  you,  to 
one  or  two  of  which  I  will  call  your  attention 
again.  "Congress  shall  make  no  law  respecting 
an  establishment  of  religion,  or  prohibiting  the 
free  exercise  thereof,  or  abridging  the  freedom  of 


70  LECTURES    ON    THE    CONSTITUTION 

speech  or  of  the  press."  I  suppose  you  have  all 
heard  of  that ;  it  is  a  thing  they  talk  about  a  good 
deal.  The  press  does  not  say  much  about  their 
abridgment  of  other  people's  freedom ;  but  they 
are  always  appealing  to  this  provision  of  the  Con- 
stitution in  their  own  behalf.  This  amendment 
is  a  limitation  upon  the  powers  of  Congress.  For- 
tunately, such  has  been  the  regard  of  Congress 
for  the  freedom  of  the  press  and  of  speech,  such 
has  been  the  popular  feeling  in  this  country  for 
the  right  of  every  man  to  say  and  write  what  he 
pleases,  that  there  has  been  no  attempt  on  the 
part  of  Congress,  except  once  in  its  history,  that 
I  know  of,  to  infringe  this  article  of  the  Consti- 
tution, to  do  anything  which  might  be  pronounced 
an  infringement.  During  the  great  contest  be- 
tween the  Federal  party  and  the  anti-Federal 
party,  at  the  close  of  Mr.  John  Adams'  adminis- 
tration, they  passed  a  law  called  the  alien  and 
sedition  law — two  laws,  rather :  one  was  the  alien 
and  the  other  the  sedition  law.  The  sedition  law 
did  have  provisions  against  the  publication  of 
articles  in  the  newspapers,  or  otherwise,  calculated 
to  stir  up  sedition  among  the  people;  but  before 
they  could  come  to  the  courts  the  Jeifersonian 
refjiine.  came  into  power,  and  the  whole  of  that 
system  of  legislation  was  repealed.     It  only  re* 


OF    THE    UNITED    STATES.  71 

mains  as  a  curiosity'  upon  onr  statute-books.  Per- 
haps there  are  some  gentlemen  in  this  house  old 
enough  to  remember  when  our  Democratic  breth- 
ren used  to  charge  their  opponents  with  being  the 
advocates  and  framers  of  the  alien  and  sedition 
laws ;  but,  as  much  as  it  was  talked  about  and 
written  about,  it  never  became  the  subject  of  any 
judicial  judgment  in-this  country,  that  I  know  of. 
"  Or  the  right  of  the  people  peaceably  to  assem- 
ble and  to  petition  the  government  for  redress  of 
grievances."  All  those  things,  fortunately,  are 
things  which,  not  only  in  this  country,  but  in  the 
country  with  which  our  ancestors  were  familiar, 
have  passed  away.  The  press  was  fettered  in 
England,  and  the  freedom  of  speech  was  fettered 
in  England,  and  the  right  of  the  people  to  assem- 
ble was  fettered ;  and  in  F'l-ance  to-day,  although 
it  is  a  republic,  the  censor  thinks  no  more  of 
stopping  a  newspaper  for  six  or  eight  months 
than  a  policeman  would  of  arresting  a  man  on 
the  streets  here.  In  Louis  Napoleon's  time,  if 
more  than  three  men  were  found  together  and 
could  not  tell  what  they  were  talking  about,  they 
were  arrested.  Those  things  w^ere  common  in 
the  days  when  the  Constitution  was  framed,  but 
they  have  passed  away,  and  we  do  not  realize 
that  thev  ever  were. 


72  LECTURES    ON    THE    CONSTITUriON 

The  next  article,  the  third  (;f  the  amendments, 
is: 

'•That  no  soldier  shall,  in  time  of  pence,  be  quartered 
in  any  lionse  withont  the  consent  of  the  owner,  nor  in 
time  of  war  but  in  a  manner  to  bo  presci'ibed  by  law." 

That  is  another  grievance  we  do  not  know  in 
this  countr3\  Ko  man  here  has  seen  a  soldier 
quartered  on  a  private  citizen.  But  it  was  the 
hahit  of  the  English  Government  and  all  govern- 
ments of  Europe — the  English  being  the  most 
liberal — to  have  tlieir  soldiers  in  times  of  peace 
billeted  on  the  citizens.  Regiments  of  soldiers 
would  be  quartered  in.  York  or  Liverpool,  or  in 
Scotland,  or  some  place  where  it  was  necessary 
they  should  be;  and  instead  of  paying  for  their 
support,  as  we  do  now,  and  as  all  nations  do,  I 
think,  each  soldier  was  billeted  on  a  citizen,— that 
is,  boarded  and  lodged ;  and  if  there  was  any  com- 
pensation, it  was  irregular  and  uncertain.  There 
was  no  right  on  the  part  of  the  citizen  to  refuse. 
They  were,  perhaps,  in  some  way  compensated, 
but  they  had  no  right  to  say:  "You  shall  not  put 
a  soldier  in  my  house  at  all."  This  provision  not 
only  says  it  shall  not  be  done  at  all  in  time  of 
peace  without  the  consent  of  the  owner,  but  that 
it  shall  be  done  in  time  of  war  only  in  a  manner 
to  be  prescribed  by  law.     It  contemplate^  the 


OF   THE    UNITED    STATES. 


[jossihle  tact  that  in  time  of  great  emergency,  in    "^    ^ 
time  of  war,  it  may  be  necessary,  but  even  then^^  ^x 
not  at  the  will  of  the  commander,  but  in  a  man-  Z^*^^^*^ 
ner  to  be  prescribed  by  the  general  law  of  the 
land. 

"The  right  of  tlie  people. to  be  secure  in  their 
persons,  houses,  papers,  and  effects,  against  un- 
reasonable searches  and  seizures,  shall  not  be 
violated."  That  was  a  grand  general  proposi- 
tion. Perhaps  all  the  English  people  would  say 
that  is  the  right  of  all  of  us  anyhow ;  but  the  pro- 
vision goes  further,  and  says: 

"•  And  no  warjiints  shall  issno,  but  upon  probable  cause, 
snpportod  by  oatli  oi*  .-iflSmiation,  and  particnlarly  (le- 
ficiibino:  the.  place  to  be  searched,  and  tlie  persons  or 
tliino:.s  to  be  seized." 

That  has  been  of  great  utility  in  this  country. 
Formerly,  general  search-warrants  were  issued 
})y  magistrates,  courts,  and  clerks,  to  officers,  to 
scnirch  any  man's  house  for  anything  that  might 
be  supposed  to  elucidate  and  explain  crime  and 
bring  criminals  to  justice  or  establish  private 
rights;  and  in  addition  to  this  declaration  that 
this  shall  not  be  done,  the  article  goes  on  to  say 
i?i  what  way  it  can  be  done ;  that  is,  warrants 
shall  issue,  first,  "  upon  probable  cause,  supported 
by  oath  or  affirmation,  and  particularly  describ- 

*   4 


74  LECTURES    ON    THE    CONSTITUTION 

ing  the  pluce  to  bo  searched,  and  the  persons  or 
things  to  be  seized." 

Now  comes  an  article  embodying,  perhaps, 
more  important  matter  regarding  the  liberty  of 
the  citizen  than  any  other  in  the  Constitution, 
until  we  come  to  some  of  those  adopted  since 
the  Rebelhon.  Article  V  of  the  amendments 
declares  that 

"■No  person  shall  be  held  to  answer  for  Ji  capital  or 
otherwise  infan^ous  crime,  unless  on  a  presentment  or  in- 
dictment of  a  grand  jiny,  except  in  cases  arising  in  the 
land  or  naval  forces,  or  in  the  militia  when  in  actnal 
service,  in  time  of  war  or  pnbllc  danger ;  nor  shall  an}- 
pei'son  be  snbject  for  the  same  offense  to  be  twice  pnt  in 
jeopardj'  of  life  or  limb;  nor  shall  be  compelled,  in  any- 
criminal  ease,  to  be  witness  against  himself;  nor  be  de- 
prived of  life,  liberty,  or  property  without  due  process  of 
law;  nor  shall  private  pi'operty  bti  taken  for  public  nse 
without  just  compensation." 

I  read  the  sixth  article  in  the  same  co:nnection : 

''*'  In  all  criminal  prosecutions  the  accused  shall  enjoN'  the 
right  to  a  speedy  and  public  trial,  by  an  iujpartial  jury  of 
the  State  and  district  wherein  the  crime  shall  have  beei» 
committed,  which  district  shall  have  been  previously  as- 
certained by  law,  and  to  be  informed  of  the  nature  and 
Ciiuse  of  the  accusation  ;  to  Ix)  confronted  with  the  wit- 
nesses against  him;  to  have  compulsory  pi-ocess  for  ob- 
taining witnesses  in  his  ftivor;  and  to  luive  the  assistance 
of  counsel  for  his  defense." 

Here  is   the  great   bulwark  which  has   been 


OF   THE    UNITED    STATES.  75 

tbrovvii  up  against  improper,  vindictive,  and 
overbearing  prosecutions,  as  a  limitation  upon 
the  ])Owers  of  the  United  States;  and  m  the  Con- 
stitutions of  most  of  the  States  similar  provisions 
are  found. 

"No  person  shall  be  held  to  answer  for  a  cap- 
ital or  otherwise  infamous  crime,  unless  on  a 
presentment  or  indictment  of  a  grand  jury." 
Here  is  a  distinction  between  a  capital  or  infa- 
mous crime  and  those  of  minor  offenses.  A 
man  might  be  proceeded  against  on  information 
for  defrauding  the  revenue;  for  petty  offenses  of 
an  insignificant  character;  for  slander  and  assault 
and  battery ;  for  a  great  many  things;  but  if  the 
crime  is  one  which  renders  him  infamous,  of 
which  the  general  punishment  is  sending  him 
to  the  penitentiary,  an  offense  they  call  felony — 
if  he  is  to  be  tried  for  that,  he  cannot  be  tried 
except  upon  indictment  by  a  grand  jury.  It  is 
very  doubtful  whether  that  is  a  wise  provision 
now.  There  are  a  great  many  States  seeking  to 
get  rid  of  it.  Instead  of  a  bulwark,  it  has  been 
made  a  stumbling  block.  Like  the  press,  like 
religion,  like  government  itself,  it  is  capable  of 
perversion;  but  at  the  time  when  these  senti- 
ments were  delivered,  when,  in  the  country  from 
which  we  came,  men   were  prosecuted  for   the 


^tSE 


^ 


76  LECTURES    ON    THE   CONSTITUTION 

slightest  thing  in  the  way  of  uttering  or  speaking 
a  harsh  word  against  the  King,  or  against  the 
King's  character, — when  they  were  prosecuted 
without  indictment,  on  information  and  convicted 
upon  presumption,  why,  it  was  something  to  de- 
clare, as  the  permanent  law  of  this  country,  that 
no  man  should  he  so  prosecuted  until  the  grand 
jury  inquired  into  his  case  and  ascertained  the 
grounds  of  the  charge  against  him.  There  are 
some  cases  which  are  exceptions: 

'■' Except  in  cases  Jirising  in  the  land  or  naval  forces,  or 
in  the  militia  when  in  actnal  service,  in  time  of  war  or 
public  (lano;er." 

The  reason  of  that  was  that  they  could  not 
stop  to  try  him  by  jury,  and  they  had  to  try  him 
suddenly  and  dispose  of  his  case. 

Now,  another  thing : 

•"Nor  shall  any  person  be  subject  for  the  same  offense 
to  be  twice  put  in  jeopardy  of  life  and  limb." 

That  was  an  old  common-law  maxim,  but  was 
thought  to  be  sufficiently  important  to  be  put  in 
the  Constitution.  The  meaning  of  it  is,  that  if  a 
man  is  tried,  and  the  jury  renders  a  verdict,  he 
can  never  be  tried  for  that  offense  again.  The 
phrase  "life  and  limb"  is  an  old  technical  one, 
which  is  construed  to  mean  the  life  or  liberty  of 
himself  or  the  loss  of  his  property.     When  you 


OF   THE    UNITED    STATES.  77 

come  to  practice  law,  you  will  find  iu  civil  cases 
the  same  doctrine  to  be  that  no  man  shall  be  twice 
vexed  for  the  same  cause.  It  means  the  same 
thing.  And  the  other  maxim  on  which  it  rests 
is,  that  it  is  the  interest  of  the  republic  that  litiga- 
tion shall  have  an  end.  "So  that  the  principle  of 
the  common  law,  of  the  civil  law,  and  of  the 
criminal  law  is,  tliat  when  a  man  has  once  been 
tried  by  a  competent  tribunal  and  the  case  is 
ended  so  as  to  be  beyond  appeal  or  review,  the 
charge  can  never  be  brought  against  that  man 
again,  and  he  can  never  dispute  the  judgment 
again. 

"Nor  shall  he  be  compelled,  in  any  case,  to  be 
a  witness  against  himself."  That  was  a  provision 
necessary  in  that  day.  All  of  you  who  have 
read  Scott's  novels,  for  instance,  will  remember 
the  man  who  was  tried  for  some  offense  against 
the  Crown — I  think  some  one  of  those  Scotch 
covenanters  who  were  engaged  in  the  rebellion — 
and  they  wanted  to  make  him  testify  against  him- 
self and  also  against  his  co-conspirators.  They 
applied  the  thumb-screw  to  him,  and  there  were 
various  other  modes  of  torture;  but  Scott  tells 
us  that  the  man  was  brought  before  Lord  Lauder- 
dale, and,  after  suffering  a  great  deal,  his  lordship 
said  to  him:   "Why  don't  vou  tell  rather  than 


78  LECTURES    ON   THE    CONSTITUTION 


suffer  so  much  ? "  Said  he :  "  My  lord,  if  I  ac- 
cuse any  man,  you  will  be  the  first  one  that  I 
shall  accuse  under  this  pressure."  Now,  that 
thing  struck  Lauderdale  and  others  engaged  in 
the  tr'fft  so  forcibly,  that  very  soon  after  tor- 
ture was  abolished,  although  the  rule  continued 
that  a  man  could  testify,  if  he  would,  against 
himself.  But  this  clause  says  that  no  man  can 
be  compelled  to  testify  against  himself  in  a  crim- 
inal case. 

And  now  comes  the  other  provision : 

''Nor  be  deprived  of  life,  liberty,  or  property  without 
due  process  of  law." 

To  describe  what  is  "due  process  of  law" 
might  perhaps  occupy  a  whole  lecture  with  a 
great  deal  of  profit.  It  is  a  provision  that  in 
this  branch  of  the  Constitution,  in  these  first 
amendments,  this  fifth  amendment  was  put  in 
as  a  limitation  upon  the  power  of  Congress.  It 
meant  that  neither  Congress,  nor  the  President, 
nor  the  executive,  nor  the  courts,  should  depriv^e 
any  man  of  life,  liberty,  or  property  without  due 
process  of  law.  In  the  fourteenth  amendment, 
one  of  the  last  that  has  ever  been  adopted,  the 
Constitution  has  extended  that  prohibition  to  the 
States : 

"No  State  shall  make  or  enforce  any  law  which  shall 


OF   THE    UNITED    STATES. 

?ibri(1o(i  tlio   privileges  or  iininmiities  of  citizeii 
United  States;  nor  shall  any  State  deprive  any  person  of 
life,  liberty,  or  property  withont  due  process  of  law." 

So  that  neither  Congress  nor  a  State  ^author- 
ized to  deprive  any  individual  of  life,  ^erty,  or 
property  without  dae  process  of  hiw;  and  it  be- 
comes, therefore,  very  important  to  know  wliat 
^'  due  process  of  law  "  is. 

Neither  the  Congress  of  the  United  States — to 
its  credit  be  it  said — nor  the  executive,  nor  the 
courts,  so  far  as  I  know,  have  hardly  ever  in  any 
instance  been  charged  with  attempting  to  do  that 
thing;  but  the  States  have  not  been  so  temper- 
iite,  and  they  are  not  so  temperate  in  their  legis- 
lation generally  as  Congress  is.  Since  that  pro- 
vision has  been  the  law  of  the  land,  since  1867 — 
when,  I  believe,  that  amendment  was  adopted — 
the  Federal  courts  are  filled  with  suits  brought 
to  vindicate  the  rights  of  citizens  under  that 
clause  of  the  Constitution;  the  parties  alleging 
that  State  laws  and  State  officers,  executive,  judi- 
cial, and  ministerial,  are  constantly  invading  the 
right  of  life,  liberty,  and  property  without  regard 
to  due  process  of  law;  and  it  has  become  a  very 
grave  question  what  due  process  of  law  means. 
ft  is  so  frequently  before  the  courts  that  I  do 
not  dare  to  trive  vou  a  definition.     It  is  best  that 


80  LECTURES    ON    THE    CONSTITUTION 

the  Supreme  Coui't  of  the  United  States,  the  final 
arbiter  in  such  eases,  should  proceed  slowly,  and 
declare,  as  each  particular  case  comes  before  it, 
whether  it  is  or  is  not  a  violation  of  that  provis- 
ion, and  whether  the  proceedings  are  or  are  not 
according  to  due  process  of  law.  It  is  sufficient 
to  say  that  by  due  process  of  law  is  meant  some 
proceeding  according  to  a  recognized  course  of 
law.  In  other  words,  neither  Congress  nor  a 
State  can  pass  a  law  declaring  that  the  property 
which  belonged  to  A  shall  at  once  be  the  prop- 
erly of  B.  They  cannot  pass  a  law  declaring 
that  the  United  States  may  seize  property  and  do 
as  they  please  with  it;  they  cannot  pass  a  law 
that  a  State  can  do  that;  they  cannot  pass  a  law 
that  you  can  summon  a  constable  and  put  a  writ 
in  his  hands,  and  by  that  means  get  a  title  to  the 
property  that  belongs  to  me.  There  must  be  a 
legal  mode  of  proceeding,  a  judicial  mode  of  pro- 
ceeding, but  always  a  proceeding  by  a  law  pre- 
scribing modes  by  which  the  rights  of  the  parties 
may  bo  determined.  That  is  due  process  of  law ; 
and  shoj't  of  that,  it  is  not  due  process  of  law. 

I  perceive,  gentlemen,  that  if  I  should  continue 
this  minute  way  through  all  of  these  subdivisions 
I  should  occupy  a  longer  time  than  I  proposed. 


OF   THE    UNITED    STATES.  81 

There  is  one  otlier,  however,  which  is  quite  ira- 

jiortant: 

"Nor  shall  private  propert.v  be  taken  for  public  use 
w  itlioiit  just  eompenpation.'' 

If  the  Government  of  the  United  States  wants 
a  piece  of  property  to  build  a  court-house,  a 
prison,  or  a  capitol ;  wants  private  property  for 
any  public  purpose,  it  cannot  take  that  property 
without  providing  at  the  same  time  and  by  the 
same  act  for  the  payment  of  just  compensation. 
Some  of  the  States,  copying  after  this  article, 
have  gone  further,  and  say  without  just  compen- 
sation first  paid  or  tendered.  This  provision,  as 
it  reads  here,  however,  has  been  construed  that 
the  State  can  take  the  land  and  pay  for  it  after- 
wards. But  the  general  idea  is,  that  whatever 
law  or  whatever  mode  of  proceeding  is  adopted 
to  take  any  private  property,  land,  or  personal 
property,  for  public  use,  the  same  law  which 
authorizes  it  to  be  done  must  provide  tlie  mode 
of  assessing  its  value  and  compensating  the  party 
for  the  property  thus  taken.  This  is  one  of  the 
wise  provisions  of  this  instrument. 

"In  all  criminal  prosecutior.s  the  accused  shall 
enjoy  the  right  to  a  speedy  trial,  by  an  impartial 
jury  of  the  State  and  district  wherein  the  crime 
shall  have  been  committed,  whicli  district  shall 


82  LECTURES    ON    THE   CONSTITUTION 

have  been  previously  ascertiiined  by  law."  Now 
notice.  He  shall  have  a  speedtj  trial.  It  shall 
be  a  putdic  trial,  not  a  star-chamber  proceeding, 
with  closed  doors,  to  keep  the  people  from  seeing 
what  is  being  done.  The  man  who  is  indicted 
or  proceeded  against  for  something  which  will  af- 
fect his  reputation,  his  life,  his  liberty,  or  his  prop- 
erty, has  the  right  to  have  the  public  look  on  and 
see  how  it  is  done ;  that  all  men  may  know  that 
he  gets  justice  and  whether  he  is  imposed  upon. 
He  is  entitled  to  a  speedy  trial,  not  to  be  kept  in 
prison  year  after  year  until  it  suits  the  pleasure  of 
his  prosecutor  to  move.  He  must  have  a  speedy 
trial,  and  the  courts  are  authorized,  and  ought, 
to  discharge  a  man  if  he  is  kept  in  confinement 
longer  than  is  reasonable.  It  must  be  a  trial  by 
an  impartial  jury.  A  jury  means  twelve  men  of 
the  vicinage,  and  for  that  reason  the  amendment 
goes  on  to  say  that  it  shall  be  "  by  an  impartial 
jury  of  the  State  and  district  wherein  the  crime 
shall  have  been  committed."  These  refer  to 
trials  in  the  United  States  court,  and  but  for  this 
clause  State  lines  need  not  be  taken  into  account. 
But  you  shall  not  go  out  of  the  State;  he  shall 
have  the  jury  summoned  from  the  State  and  from 
a  district  within  that  State  where  the  crime  has 
been  committed,  and  there  he  shall  be  taken  and 


OF   THE    UNITED    STATES.  88 

(riecl  where  the  transaction  occurred.  This  dis- 
Irict  shall  not  be  changed  after  the  oftense  is 
committed  so  as  to  put  him  in  an  unfavorable  dis- 
trict. But  such  district  shall  have  been  previously 
ascertained  by  law  or  previously  fixed  by  an  act 
of  Congress,  and  there  he  shall  be  tried.  Some 
States  in  my  early  days  changed  the  venue  by 
an  act  of  the  legislature,  but  that  cannot  be  done 
here.  He  is  to  be  informed  of  the  nature  and 
cause  of  the  accusation  ;  that  is,  if  he  is  proceeded 
against  by  information,  a  copy  shall  be  furnished 
him,  and  if  by  indictment,  a  copy  shall  also  be 
furnished  him.  "He  shall  be  confronted  with 
the  witnesses  against  him."  If  I  had  the  time, 
I  could  show  you  how  all  of  these  provisions 
are  jewels.  He  shall  be  confronted  with  the 
witnesses.  You  shall  not  take  testimony  five 
hundred  miles  away,  but  the  witnesses  shall  con- 
front him  face  to  face ;  he  shall  look  at  them 
and  have  the  opportunity  of  interrogating  them 
in  court.  "To  have  compulsory  process  lor  ob- 
taining witnesses  in  his  favor."  The  United 
States  shall  give  him  a  process — a  process  which 
shall  not  be  disobeyed — a  compulsory  process 
for  the  witnesses  that  he  wants.  He  may  be  the 
poorest  man  that  ever  lived,  but  if  he  has  wit- 
nesses he  has  a  right  to  a  compulsory  process  for 


84  LECTURES    ON    THE    CONSTITUTION 

their  attendance  in  the  courts  of  the  United 
States,  whatever  it  may  be  in  other  courts.  "And 
to  have  the  assistance  of  counsel  for  his  defense." 
Now,  you  think  that  is  quite  an  easy  thing,  be- 
cause there  are  always  lawyers  enough,  and  that 
there  is  no  need  of  having  a  provision  for  counsel. 
But  up  to  the  year  1836,  in  the  liberal  Govern- 
ment of  Great  Britain,  which  has  prided  itself 
upon  the  protection  of  the  subject,  no  man  in- 
dicted for  treason  was  entitled  to  counsel  at  his 
trial;  and  up  to  perhaps  1789  or  1798 — at  all 
events,  at  the  date  of  the  formation  of  this  Con- 
stitution— no  man  had  a  right  to  the  assistance 
of  counsel  otherwise  than  that  counsel  might  sit 
by  and  argue  questions  of  law  to  the  court,  but 
had  no  right  to  interrogate  the  witnesses,  or  make 
speeches  to  the  jury,  or  anything  of  that  kind; 
and  our  ancestors  saw  the  evil  of  that,  and  said 
that  every  man  shall  be  entitled  to  have  the 
assistance  of  counsel  in  his  defense. 

The  more  you  examine  that  instrument,  gen- 
tlemen, especially  those  portions  of  it  concerning 
these  subjects,  the  more  you  will  see  how  care- 
fully personal  rights  have  been  guarded  by  it. 
Another  of  these  is,  that 

"■Excessive  bail  sliall  not  be  required,  nor  excessive 
fines  imposed,  nor  crnel  and  nnnsnal  pinnsliments  in- 
flicted." 


OF   THE    UNITED    STATES.  85 

If  the  offense  for  winch  a  man  is  held  for  trial 
is  one  of  that  character  which  is  bailable  at  all  in 
the  courts  of  the  United  States,  you  are  to  regu- 
late the  bail  according  to  his  ability  to  give  bail. 
Five  or  ten  thousand  dollars,  reasonable  to  a 
man  in  easy  circumstances,  would  be  beyond  the 
reach  of  another  man  who  could  give  live  hun- 
dred or  a  thousand  dollars.  That  is  the  meaning 
of  that  clause;  and  as  to  cruel  and  unusual  pun- 
ishment, it  means  that  you  shall  not  cut  off  his 
ear,  or  burn  him  alive,  and  all  that  kind  of  thing. 

The  Constitution  stood  in  that  way  on  the  sub- 
ject of  personal  liberty  and  the  personal  rights 
of  the  citizen  until  the  outbreak  of  the  war  of 
the  Rebellion.  The  thirteenth  amendment  is 
one  whose  adoption  is  in  the  memory  of  almost 
every  gentleman  who  is  listening  to  me,  and  it 
will  be  one  of  the  most  memorable  of  all  the 
amendments  to  that  instrument.  It  was  perhaps 
the  most  important  of  all  the  amendments,  not- 
withstanding the  great  value  of  those  which  I 
have  commented  upon.     It  reads: 

"•  That  neither  slavery  nor  involnntiuy  servitnde,  except 
as  a  punishment  for  crime  whereof  the  partly  sliall  have 
been  dnly  convicted,  shall  exist  within  the  United  States, 
or  any  place  snbject  to  their  jnrisdiction." 

There  is  a  magnificent  provision  for  the  per- 


86  LECTURES    ON    THE    CONSTITUTION 

sonal  rights  of  man.  There  is  to  be  no  more 
slavery.  Millions  of  people,  by  that  simple  pro- 
vision, were  translated  from  a  condition  of 
slavery  equal  to  tbat  of  the  most  barbarous 
period  that  the  ancient  or  the  modern  world  has 
ever  seen,  to  a  condition  of  liberty,  of  manhood, 
of  right.  This  is  not  the  occasion,  gentlemen, 
nor  have  I  the  time,  to  comment  upon  its  im- 
portance. 

The  next  is  the  fourteenth  amendment.  I 
have  read  to  you  one  of  its  principal  provisions. 
I  will  read  them  all: 

''All  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the 
United  States,  and  of  the  State  wherein  the}'  reside.*' 

That  is  the  first  time  in  any  constitutional  pro- 
vision, in  any  act  of  Congress,  or  in  any  authori- 
tative form,  that  the  word  "  citizen  "  was  defined. 
You  will  find  it  all  through  the  books,  the  speeches, 
the  public  discussions  of  ever}^  kind,  but  it  was 
never  defined  authoritatively  until  it  was  defined 
here  in  this  fourteenth  amendment.  Here  you 
have  a  citizen  of  the  United  States  and  a  citizen 
of  the  State  in  which  a  man  resides.  I  cannot 
go  into  an  explanation  of  that  definition,  but  I 
refer  you  to  the  decision  of  the  Supreme  Court 
in  the  Slaughter-house  Cases,  in  16th  Wallace,  in 


OF    THE    UNITED    STATES.  0/ 

which  you  will  find  the  construction  which  that 

court  has  given  to  these  last  tlu-ee  amendments. 

After  that  it  says: 

''No  State  i^hall  n-iake  or  ouforcc  any  law  wliicli  sliall 
al)ii(l«i;('  tli(^  privilet^os  or  imininiitii'S  of  citizens  of  the 
Unito<l  States;  nor  shall  any  State  deprive  any  person  of 
life,  liherty,  or  property  without  due  process  of  law,  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  pro- 
tection of  the  laws." 

Gentlemen,  closing  with  that  grand  sentence, 
that  there  shall  be  no  denial  of  the  equal  protec- 
tion of  the  laws,  permit  me  the  further  observa- 
tion that  tliis  instrument,  some  fragmentary  re- 
marks on  which  I  have  been  making  to  you  on 
these  three  evenings,  is  an  instrument  deserving 
as  sacred  and  profound  reverence  as  the  sacred 
books  of  the  religions  of  the  world,  except  the 
Bible.  It  is  an  instrument  conceived  in  wisdom 
and  forethought,  adapted  to  the  organization  and 
perpetuity  of  government — adapted  to  the  security 
of  the  rights  of  the  citizen,  of  the  individual.  It 
is  an  instrument  which  has  stood  the  progress  of 
almost  a  hundred  years,  which  has  been  tested  by 
the  events  of  those  years,  and  its  forecast  and 
wisdom  have  shone  brighter  and  l)righter  with 
every  test  that  has  been  applied  to  it.  It  has 
withstood  the  shock  of  a  war  of  national  defense 
with  Great  Britain,  of  a  war  of  conquest  against 


s^V 


88  LECTURES    ON   THE    CONSTITUTION. 

oar  neighbors,  the  Mexicans,  and  of  a  civil  war 
such  as  never  convulsed  a  nation  on  the  face  of 
the  globe.  In  all  this  it  has  come  out  brighter 
and  stronger;  it  has  exhibited  powers  calculated 
for  all  emergencies;  it  has  shown  capacities  for 
promoting  the  welfare  of  mankind — the  happiness 
of  the  people  subject  to  its  dominion.  There  is 
no  subject,  gentlemen,  to  which  jou  can  give 
your  study  and  your  time,  your  care  and  industry, 
that  will  reward  you  better,  either  in  your  life  as 
citizens,  in  your  profession  as  lawyers,  or  as  states- 
men if  you  should  become  public  men.  There 
is  none  equal  to  that  instrument  of  which,  in  these 
few  evenings,  I  have  attempted  to  say  something 
in  a  very  desultory  way,  and  to  which  I  have  done 
but  very  poor  justice.  And  if,  gentlemen,  you 
have  been  as  much  pleased  in  listening  to  these 
three  discourses  as  I  have  been  in  delivering 
them,  I  shall  have  ample  compensation  for  any 
trouble  that  I  have  been  at.     [Applause.] 


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